<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 22, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DONALDSON, LUFKIN & JENRETTE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-1898818
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
277 PARK AVENUE
NEW YORK, NEW YORK 10172
(212) 892-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
MICHAEL A. BOYD
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
DONALDSON, LUFKIN & JENRETTE, INC.
277 PARK AVENUE
NEW YORK, NEW YORK 10172
(212) 892-3000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPIES TO:
RUSSELL J. BRUEMMER
WILMER, CUTLER & PICKERING
2445 M STREET, N.W.
WASHINGTON, D.C. 20037
(202) 663-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable and from time to time after this Registration Statement
becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933 other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PRICE(1) PRICE (2) FEE
- ---------------------------------------- ----------------------- ---------- -------------- --------------
<S> <C> <C> <C> <C>
Senior Debt Securities and Subordinated
Debt Securities........................ $1,000,000,000(2)(3)(4) 100% $1,000,000,000 $303,031(5)
- ---------------------------------------- ----------------------- ---------- -------------- --------------
</TABLE>
- ----------------
(1) Estimated solely for purposes of calculating the registration fee.
(2) Such indeterminable number or amount of Senior Debt Securities and
Subordinated Debt Securities of the registrant as may from time to time
be issued at indeterminable prices or upon conversion or exchange of
securities so issued.
<PAGE>
(3) Such amount in U.S. dollars or the equivalent in one or more foreign
currencies, currency units or composite currencies, or if any Senior
Debt Securities or Subordinated Debt Securities are issued at original
issue discount, such greater amount as shall result in an aggregate
initial offering price of $1,000,000,000.
(4) This Registration Statement also relates to offers and sales of Senior
Debt Securities and Subordinated Debt Securities in connection with
market-making transactions by and through affiliates of the registrant,
including Donaldson, Lufkin & Jenrette Securities Corporation.
(5) Previously paid in connection with Registration No. 333-29761.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
Pursuant to Rule 429 under Securities Act of 1933, this Registration
Statement contains a prospectus that also relates to $1,000,000,000 of Debt
Securities registered under, and constitutes Post-Effective Amendment No. 1
to, Registration Statement No. 333-29761 on Form S-3 previously filed by the
Registrant and declared effective on June 30, 1997. A Registration Fee of
$303,031 may be apportioned to such securities and was previously paid with
such earlier registration statement.
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains a form of Prospectus to be used in
connection with the offering of Senior Debt Securities and Subordinated Debt
Securities of Donaldson, Lufkin & Jenrette, Inc. Each offering of securities
made under this Registration Statement will be made pursuant to such
Prospectus, with the specifications of the securities offered thereby set
forth in an accompanying Prospectus Supplement.
In addition, this Registration Statement contains separate prospectus
pages relating to certain market-making transactions in the Senior Debt
Securities and Subordinated Debt Securities of Donaldson, Lufkin & Jenrette,
Inc.
The complete Prospectus for the offering of the Senior Debt Securities and
Subordinated Debt Securities follows immediately after this Explanatory Note.
Following such Prospectus are certain portions of such Prospectus relating to
the market-making transactions, which include an alternative front and back
cover page, an alternate "Use of Proceeds" section and an alternate "Plan of
Distribution" section. All other sections of the Prospectus for the initial
sale of the Senior Debt Securities and Subordinated Debt Securities are to be
used in the Prospectus relating to the market-making transactions.
<PAGE>
INFORMATION CONTAINED IN THIS PRELIMINARY PROSPECTUS SUPPLEMENT IS SUBJECT TO
COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE
SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE
SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE
TIME THE FINAL PROSPECTUS SUPPLEMENT BECOMES EFFECTIVE. THIS PRELIMINARY
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY
SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR
SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION
DATED AUGUST 22, 1997
PROSPECTUS SUPPLEMENT
AUGUST , 1997
(TO PROSPECTUS DATED AUGUST 22, 1997)
$500,000,000
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
Donaldson, Lufkin & Jenrette, Inc. (the "Company") may from time to time
offer its Medium-Term Notes (the "Notes"), in an aggregate principal amount
(or in the case of Notes issued at a discount from the principal amount, an
aggregate initial offering price) of up to $500,000,000 or the equivalent
thereof in one or more other currencies, composite currencies, or currency
units, subject to reduction as a result of the sale of certain other Debt
Securities. Unless otherwise indicated in the applicable Pricing Supplement,
the interest rate on each Note will be either a fixed rate established by the
Company at the date of issue of such Note, which may be zero in the case of
certain Original Issue Discount Notes (as defined herein), or a floating rate
as set forth therein and specified in the applicable Pricing Supplement.
Notes may also be issued as otherwise described under "Description of Notes."
The interest rate or rates and/or interest rate formula or formulae, if
any, issue price, stated maturity, and other variable terms of the Notes will
be established by the Company prior to the date of issuance of such Notes and
will be specified in the applicable Pricing Supplement. Interest rates and
interest rate formulae are subject to change by the Company, but no such
change will affect any Note which the Company has already issued or has
agreed to issue. Original Issue Discount Notes may provide that holders of
such Notes will not receive periodic payments of interest. See "Description
of Notes--Original Issue Discount Notes." Each Note will mature on a day nine
months or more from the date of issue, as set forth in the applicable Pricing
Supplement. Unless otherwise specified in the applicable Pricing Supplement,
the Notes may not be redeemed by the Company or repaid by the Company at the
option of the holders prior to maturity. Notes denominated in U.S. dollars
will be issued in denominations of $1,000 or any amount in excess thereof
which is an integral multiple of $1,000. The authorized denominations of
Notes not denominated in U.S. dollars and any terms relating to such Notes
will be set forth in the applicable Pricing Supplement.
Each Note will be issued only in fully registered form and will be
represented either by a global security registered in the name of a nominee
of (unless otherwise specified on the applicable Pricing Supplement) The
Depository Trust Company, as Depositary (a "Book-Entry Note"), or by a
certificate issued in definitive form (a "Certificated Note"), as set forth
in the applicable Pricing Supplement. Beneficial interests in global
securities representing Book-Entry Notes will be shown on, and transfers
thereof will be effected through, the records maintained by the Depositary
(with respect to participants' interests) and its participants. Book-Entry
Notes will not be issuable as Certificated Notes except in limited
circumstances. See "Description of Debt Securities--Book-Entry System" in the
accompanying Prospectus.
SEE "FOREIGN CURRENCY RISKS" BEGINNING ON PAGE S-21 HEREOF FOR CERTAIN
INFORMATION THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT, ANY PRICING SUPPLEMENT OR
THE PROSPECTUS TO WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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<TABLE>
<CAPTION>
PRICE TO THE UNDERWRITING DISCOUNTS PROCEEDS TO THE
PUBLIC(1) OR COMMISSIONS(2) COMPANY(3)
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<S> <C> <C> <C>
Per Note.... 100% .125% to .875% 99.875% to 99.125%
Total (4) .. $500,000,000 $625,000 to $4,375,000 $499,375,000 to $495,625,000
- ---------------------------------------------------------------------------------
</TABLE>
(1) Unless otherwise specified in the applicable Pricing Supplement,
Notes will be sold at 100% of their principal amount. If the Company
issues any Note at a discount from or at a premium over its principal
amount, the Price to Public of such Note will be set forth in the
applicable Pricing Supplement.
(2) Unless otherwise specified in the applicable Pricing Supplement, the
commission payable to an Agent (as defined below) for each Note sold
through such Agent shall range from .125% to .875% of the principal
amount of such Note. The Company may also sell Notes to an Agent, as
principal, at negotiated discounts, for resale to one or more
investors or other purchasers at fixed offering prices or at varying
prices related to prevailing market prices at the time of resale or
otherwise, as determined by such Agent. Unless otherwise indicated in
the applicable Pricing Supplement, any Note sold to an Agent as
principal shall be purchased by such Agent at a price equal to 100%
of the principal amount thereof less a percentage equal to the
commission applicable to any agency sale of a Note of identical
maturity. The Company has agreed to indemnify each Agent against
certain liabilities, including liabilities under the Securities Act
of 1933, as amended.
(3) Before deducting expenses payable by the Company estimated at
$1,100,000.
(4) Or the equivalent thereof in other currencies or currency units.
The Notes are expected to be offered on a continuing basis by the Company
through Donaldson, Lufkin & Jenrette Securities Corporation and certain other
agents (individually, an "Agent" and, collectively, the "Agents"), each of
which will agree to use its reasonable efforts to solicit purchases of the
Notes. The Company will reserve the right (i) to sell Notes directly to
investors in those jurisdictions in which the Company is so permitted and
(ii) to accept (but not solicit) offers to purchase Notes from time to time
through one or more additional agents or dealers, acting either as principal
or agent, on substantially the same terms as those applicable to sales of
Notes to or through the Agents. Unless otherwise specified in the applicable
Pricing Supplement, the Notes will not be listed on any securities exchange,
and there can be no assurance that the Notes offered hereby will be sold or
that there will be a secondary market for the Notes. The Company reserves the
right to withdraw, cancel or modify the offer made hereby without notice. No
termination date for the offering of the Notes has been established. The
Company may reject any offer in its sole discretion, or an Agent may reject
any offer it reasonably considers to be unacceptable, in whole or in part.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
All documents filed by the Company after the date of this Prospectus
Supplement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange "Act of 1934, as amended (the "Exchange Act"), prior to the
termination of the offering of the Notes offered hereby, shall be deemed to
be incorporated herein by reference and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of the Prospectus and this accompanying
Prospectus Supplement to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statements as modified or superseded shall be deemed, except as so
modified or superseded, to constitute a part of the Prospectus and this
accompanying Prospectus Supplement.
The Company will provide without charge to each person to whom a copy of
the Prospectus and this accompanying Prospectus Supplement is delivered, upon
written or oral request of such person, a copy of any or all of the documents
referred to above which have been or may be incorporated by reference in the
Prospectus and this accompanying Prospectus Supplement (other than certain
exhibits to such documents). Requests for such documents should be directed
to Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York
10172, "Attention: Corporate Secretary (Telephone: (212) 892-3000).
References herein to U.S. dollars" or "U.S. $" or "$" are to the lawful
currency of the United States of America.
S-2
<PAGE>
DESCRIPTION OF NOTES
GENERAL
The following description of the particular terms of the Notes offered
hereby (referred to in the accompanying Prospectus as the "Debt Securities"
or the "Offered Securities") supplements, and to the extent inconsistent
therewith replaces, the description of the general terms and provisions of
the Debt Securities set forth in the Prospectus, to which description
reference is hereby made. Unless otherwise specified in the applicable
Pricing Supplement, the Notes will have the terms described below, except
that references to interest payments and interest-related information do not
apply to certain Original Issue Discount Notes. See "--Original Issue
Discount Notes."
The Notes will be issued under an Indenture dated as of August , 1997
(the "Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"). The following summaries of certain provisions of the
Indenture do not purport to be complete, and are subject to, and are
qualified in their entirety by reference to, all the provisions of the
Indenture, including the definitions therein of certain terms.
The Notes will be direct, unsecured and unsubordinated obligations of the
Company. Except as described under "Description of Debt Securities--Negative
Pledge" in the accompanying Prospectus, the Notes will not limit other
indebtedness or securities which may be incurred or issued by the Company or
any of its subsidiaries or contain financial or similar restrictions on the
Company or any of its subsidiaries. The operations of the Company are
conducted through its subsidiaries, and therefore, the Company is dependent
upon the earnings and cash flow of its subsidiaries to meet its obligations,
including obligations under the Notes. The Notes will be effectively
subordinated to all indebtedness of the Company's subsidiaries. The Company's
rights and the rights of its creditors, including holders of Notes, to
participate in the distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization will be subject to prior claims of
such subsidiary's creditors, including trade creditors, except to the extent
the Company may itself be a creditor with reorganized claims against such
subsidiary.
This Prospectus Supplement and any Pricing Supplement, may be used in
connection with the offer and sale from time to time of Notes in an aggregate
initial public offering price of up to U.S. $500,000,000 or the equivalent
thereof in other currencies or currency units (provided that, with respect to
Original Issue Discount Notes, the initial offering price of such Notes shall
be used in calculating the aggregate principal amount of Notes offered
hereunder). The aggregate principal amount of Notes authorized to be issued
hereunder may be increased by the Company from time to time. The aggregate
principal amount of Notes authorized to be issued under this Prospectus
Supplement is subject to reduction as a result of the sale by the Company
after the date of this Prospectus Supplement of other issues of Debt
Securities (as defined in the Prospectus) from time to time as described in
the accompanying Prospectus to the extent the aggregate principal amount of
such Notes exceeds $500,000,000. See "Plan of Distribution" herein and in the
accompanying Prospectus.
The Pricing Supplement relating to a Note will describe the following
terms: (i) the currency or currency unit in which such Note is denominated
(the "Specified Currency") and, if other than the Specified Currency, the
currency or currency unit in which payments of principal and interest on such
Note will be made (and, if the Specified Currency is other than U.S. dollars,
certain other terms relating to such Note (a "Foreign Currency Note") and
such Specified Currency); (ii) whether such Note bears a fixed rate of
interest (a "Fixed Rate Note") or bears a floating rate of interest (a
"Floating Rate Note") (including whether such Note is a Regular Floating Rate
Note, a Floating Rate/Fixed Rate Note or an Inverse Floating Rate Note (each
as defined below)); (iii) the price at which such Note will be issued (the
"Issue Price"); (iv) the date on which such Note will be issued (the
"Original Issue Date"); (v) the date on which such Note will mature; (vi) if
such Note is a Fixed Rate Note, the rate per annum at which such Note will
bear interest, if any, and whether the maturity thereof is extendible; (vii)
if such Note is a Floating Rate Note, the Interest Rate Basis, the Initial
Interest Rate, the Interest Payment Dates, the Index Maturity, the Spread
and/or Spread Multiplier, if any (each as defined below), and any other terms
relating to the particular method of calculating the interest rate for such
Note; (viii) if such Note is an Indexed Note (as defined below), the terms
relating to the particular Note; (ix) if such Note is a Dual
S-3
<PAGE>
Currency Note (as defined below) the terms relating to the particular Note;
(x) if such Note is an Amortizing Note (as defined below), the amortization
schedule and any other terms relating to the particular Note; (xi) whether
such Note is an Original Issue Discount Note; (xii) whether such Note may be
redeemed at the option of the Company, or repaid at the option of the holder,
prior to its stated maturity as described under "--Optional Redemption" and
"--Repayment at the Noteholders' Option; Repurchase" below and, if so, the
provisions relating to such redemption or repayment, including, in the case
of any Original Issue Discount Notes, the information necessary to determine
the amount due upon redemption or repayment; (xiii) any relevant tax
consequences associated with the terms of the Notes which have not been
described under "United States Tax Considerations" below; and (xiv) any other
terms of such Note not inconsistent with the provisions of the Indenture.
Subject to such additional restrictions as are described under "Special
Provisions Relating to Foreign Currency Notes," each Note will mature on a
day nine months or more from the date of issue, as specified in the
applicable Pricing Supplement, as selected by the initial purchaser and
agreed to by the Company. In the event that such maturity date of any Note or
any date fixed for redemption or repayment of any Note (collectively, the
"Maturity Date") is not a Business Day (as defined below), principal and
interest payable at maturity or upon such redemption or repayment will be
paid on the next succeeding Business Day with the same effect as if such
Business Day were the Maturity Date. No interest shall accrue for the period
from and after the Maturity Date to such next succeeding Business Day. Except
as may be provided in the applicable Pricing Supplement and except for
Indexed Notes, all Notes will mature at par.
The Notes will be offered on a continuing basis, and will be issued in
denominations of $1,000 and any integral multiples of $1,000 in excess
thereof, unless otherwise specified in the applicable Pricing Supplement;
provided, however, that Notes in Specified Currencies other than U.S. dollars
shall be issued in such denominations as are set forth in the applicable
Pricing Supplement. See "Special Provisions Relating to Foreign Currency
Notes."
Interest rates offered by the Company with respect to the Notes may differ
depending upon, among other things, the aggregate principal amount of the
Notes purchased in any single transaction.
Notes will be issued in the form of (i) one or more fully registered
global securities (each, a "Global Security") deposited with or on behalf of
a depositary (the "Depositary") which unless specified otherwise on the
applicable Pricing Supplement, will be The Depository Trust Company ("DTC"),
and registered in the name of a nominee of the Depositary (a "Book-Entry
Note") or (ii) a certificate in definitive form (a "Certificated Note"), in
each case as specified in the applicable Pricing Supplement. See "Description
of Debt Securities--Book Entry System" in the Prospectus. Certificated Notes
will not be exchangeable for Book-Entry Notes and, except under the
circumstances described in the Prospectus under the caption "Description of
Debt Securities--Book Entry System," Book-Entry Notes will not be
exchangeable for Certificated Notes and will not otherwise be issuable as
Certificated Notes.
DTC has advised the Company that DTC is a limited purpose trust company
organized under the laws of the State of New York, a "banking organization"
within the meaning of the New York banking law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code, and a "clearing agency" registered pursuant to the
provisions of section 17A of the Exchange Act. DTC was created to hold
securities of its participants and to facilitate the clearance and settlement
of securities transactions among its participants through electronic
book-entry changes in accounts of the participants, thereby eliminating the
need for physical movement of securities certificates. DTC's participants
include securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations, some of whom (and/or their
representatives) own DTC. Access to DTC's book-entry system is also available
to others, such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a participant, either
directly or indirectly.
Principal of, premium, if any, and interest, if any, on any Notes payable
in U.S. dollars will be payable in the manner described herein, the transfer
of the Notes will be registrable, and Notes will be exchangeable for Notes
bearing identical terms and provisions at the office of The Chase Manhattan
Bank, the Company's paying agent (the "Paying Agent," which term includes any
successor paying agent appointed by the Company) and registrar for the Notes
(the "Registrar," which term includes any
S-4
<PAGE>
successor registrar), currently located at One New York Plaza, New York
10081, or such other person or persons as may be specified on the applicable
Pricing Supplement; provided, that payment of interest, other than interest
at maturity or upon redemption or repayment, may be made by check mailed to
the address of the person entitled thereto as it appears on the security
register at the close of business on the Regular Record Date (as defined
herein) corresponding to the relevant Interest Payment Date (as defined
herein); provided, further, that Book-Entry Notes will be exchangeable only
in the manner and to the extent set forth under "Description of Debt
Securities--Book-Entry System" in the accompanying Prospectus.
Notwithstanding the foregoing, (i) a depositary, as holder of Book-Entry
Notes, shall be entitled to receive payments of interest by wire transfer of
immediately available funds and (ii) a holder of $5,000,000 (or, if the Notes
are denominated in a Specified Currency 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 shall be
entitled to receive payments of interest, other than interest due at maturity
or upon redemption or repayment, if any, by wire transfer of immediately
available funds into an account maintained by the holder in the United
States, if appropriate wire transfer instructions have been received by the
Paying Agent not less than ten days prior to the applicable Interest Payment
Date. Certain additional payment provisions with respect to Foreign Currency
Notes are described under "Special Provisions Relating to Foreign Currency
Notes" below.
The principal and interest payable in U.S. dollars on a Note at maturity
or upon redemption or repayment will be paid by wire transfer of immediately
available funds against presentation of the Note at the office of the Paying
Agent, except as provided below under "--Repayment at the Noteholders'
Option; Repurchase" and unless otherwise provided in the applicable Pricing
Supplement.
INTEREST AND INTEREST RATES
General
Unless otherwise specified in the applicable Pricing Supplement, each Note
will bear interest at either (a) a fixed rate or (b) a floating rate
determined by reference to an Interest Rate Basis, which may be adjusted by a
Spread and/or Spread Multiplier (each as defined below). Any Floating Rate
Note may also have either or both of the following: (i) a maximum interest
rate limitation, or ceiling, on the rate at which interest may accrue during
any interest period; and (ii) a minimum interest rate limitation, or floor,
on the rate at which interest may accrue during any interest period. The
applicable Pricing Supplement will designate (a) a fixed rate per annum, in
which case such Notes will be Fixed Rate Notes; or (b) one or more of the
following Interest Rate Bases as applicable to such Notes, in which case such
Notes will be Floating Rate Notes: (i) the CD Rate, in which case such Notes
will be "--D Rate Notes;" (ii) the Commercial Paper Rate, in which case such
Notes will be "Commercial Paper Rate Notes;" (iii) the Federal Funds Rate, in
which case such Notes will be "Federal Funds Rate Notes;" (iv) LIBOR, in
which case such Notes will be "LIBOR Notes;" (v) the Prime Rate, in which
case such Notes will be "Prime Rate Notes;" (vi) the Treasury Rate, in which
case such Notes will be "Treasury Rate Notes;" or (vii) such other interest
rate basis or formula as is set forth in such Pricing Supplement.
Each Note will bear interest from its date of issue or from the most
recent date to which interest on such Note has been paid or duly provided
for, at the annual rate or at a rate determined pursuant to an interest rate
formula, stated therein, until the principal thereof is paid or made
available for payment. Interest will be payable on each Interest Payment Date
(except for certain Original Issue Discount Notes and except for Notes
originally issued between a Regular Record Date and an Interest Payment Date)
and at maturity or on redemption or repayment, if any. Unless otherwise
indicated in the applicable Pricing Supplement, interest payments in respect
of the Notes will equal the amount of 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 the applicable Note)
to but excluding the related Interest Payment Date or the Maturity Date, as
the case may be.
Interest will be payable to the person in whose name a Note is registered
at the close of business on the Regular Record Date next preceding the
related Interest Payment date; provided, however, that (i)
S-5
<PAGE>
if the Company fails to pay such interest on such Interest Payment Date, such
defaulted interest will be paid to the person in whose name such Note is
registered at the close of business on the record date to be established for
the payment of defaulted interest and (ii) interest payable at maturity,
redemption or repayment will be payable to the person to whom principal shall
be payable. The first payment of interest on any Note originally issued
between a Regular Record Date and an Interest Payment Date will be made on
the Interest Payment Date following the next succeeding Regular Record Date
to the registered owner on such next succeeding Regular Record Date. Interest
rates and interest rate formulae are subject to change by the Company from
time to time but no such change will affect any Note theretofore issued or
which the Company has agreed to issue. Unless otherwise indicated in the
applicable Pricing Supplement, the Interest Payment Dates and the Regular
Record Dates for Fixed Rate Notes shall be as described below under "Fixed
Rate Notes." The Interest Payment Dates for Floating Rate Notes shall be as
indicated in the applicable Pricing Supplement and in such Note, and, unless
otherwise specified in the applicable Pricing Supplement, each Regular Record
Date for a Floating Rate Note will be the fifteenth calendar day (whether or
not a Business Day) next preceding each Interest Payment Date (a "Regular
Record Date").
Fixed Rate Notes
Each Fixed Rate Note will bear interest at the annual rate specified
therein and in the applicable Pricing Supplement. Unless otherwise specified
in the applicable Pricing Supplement, the Interest Payment Dates for the
Fixed Rate Notes will be on June 15 and December 15 of each year and the
Regular Record Dates will be the fifteenth calendar day (whether or not a
Business Day) next preceding each Interest Payment Date. Unless otherwise
specified in the applicable Pricing Supplement, interest on Fixed Rate Notes
will be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any Interest Payment Date or Maturity Date for any
Fixed Rate Note is not a Business Day, payment of interest, premium, if any,
or principal otherwise payable on such Fixed Rate Note will be made on the
next succeeding Business Day and no interest on such payment shall accrue for
the period from and after such Interest Payment Date or Maturity Date to such
next succeeding Business Day.
Floating Rate Notes
Unless otherwise specified in an applicable Pricing Supplement, Floating
Rate Notes will be issued as described below. Each applicable Pricing
Supplement will specify certain terms with respect to which such Floating
Rate Note is being delivered, including: whether such Floating Rate Note is a
Regular Floating Rate Note, an Inverse Floating Rate Note or a Floating
Rate/Fixed Rate Note; the Interest Rate Basis or Bases, Initial Interest
Rate, Interest Reset Dates, Interest Reset Period, Regular Record Dates,
Interest Payment Dates, Index Maturity, maximum interest rate and minimum
interest rate, if any, and the Spread and/or Spread Multiplier, if any, and
if one or more of the specified Interest Rate Bases is LIBOR, the Index
Currency, if any, as described below.
The interest rate borne by the Floating Rate Notes will be determined as
follows:
(a) Unless such Floating Rate Note is designated as a Floating Rate/Fixed
Rate Note or an Inverse Floating Rate Note, such Floating Rate Note will
be designated a "Regular Floating Rate Note" and, except as described
below or in an applicable Pricing Supplement, will bear interest at the
rate determined by reference to the applicable Interest Rate Basis or
Bases (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any. Unless otherwise
specified in the applicable Pricing Supplement, commencing on the Initial
Interest Reset Date, the rate at which interest on such Regular Floating
Rate Note shall be payable shall be reset as of each Interest Reset Date;
provided, however, that the interest rate in effect for the period from
the Original Issue Date to the Initial Interest Reset Date will be the
Initial Interest Rate.
(b) If such Floating Rate Note is designated as a "Floating Rate/Fixed
Rate Note," then, except as described below or in an applicable Pricing
Supplement, such Floating Rate Note will initially bear interest at the
rate determined by reference to the applicable Interest Rate Basis or
Bases (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any.
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Commencing on the Initial Interest Reset Date, the rate at which interest
on such Floating Rate/Fixed Rate Note shall be payable shall be reset as
of each Interest Reset Date; provided, however, that (x) the interest rate
in effect for the period from the Original Issue Date to the Initial
Interest Reset Date will be the Initial Interest Rate; and (y) the
interest rate in effect commencing on, and including, the Fixed Rate
Commencement Date (as defined in the applicable Pricing Supplement) to the
Maturity Date shall be the Fixed Interest Rate, if such rate is specified
in the applicable Pricing Supplement, or if no such Fixed Interest Rate is
so specified and the Floating Rate/Fixed Rate Note is still outstanding on
such day, the interest rate in effect thereon on the day immediately
preceding the Fixed Rate Commencement Date.
(c) If such Floating Rate Note is designated as an "Inverse Floating Rate
Note," then, except as described below or in an applicable Pricing
Supplement, such Floating Rate Note will bear interest equal to the Fixed
Interest Rate specified in the related Pricing Supplement minus the rate
determined by reference to the Interest Rate Basis or Bases (i) plus or
minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any; provided, however, unless otherwise
specified in the applicable Pricing Supplement, the interest rate thereon
will not be less than zero. Commencing on the Initial Interest Reset Date,
the rate at which interest on such Inverse Floating Rate Note is payable
shall be reset as of each Interest Reset Date; provided, however, that the
interest rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date will be the Initial Interest Rate.
Notwithstanding the foregoing, if such Floating Rate Note is designated as
having an Addendum attached as specified on the face thereof, such Floating
Rate Note shall bear interest in accordance with the terms described in such
Addendum and the applicable Pricing Supplement. See "--Other Provisions,
Addenda" below.
Unless otherwise provided in the applicable Pricing Supplement, each
Interest Rate Basis shall be the rate determined in accordance with the
applicable provisions below. Except as set forth above or in a Pricing
Supplement, the interest rate in effect on any Interest Reset Date will be
the applicable rate as reset on such date. The interest rate applicable to
any other day is the interest rate from the immediately preceding Interest
Reset Date (or, if none, the Initial Interest Date).
Interest on Floating Rate Notes will be determined by reference to an
"Interest Rate Basis," which may be one or more of (i) the CD Rate, (ii) the
Commercial Paper Rate, (iii) the Federal Funds Rate, (iv) LIBOR, (v) the
Prime Rate, (vi) the Treasury Rate, or (vii) such other Interest Rate Basis
or interest rate formula as may be set in the applicable Pricing Supplement;
provided, however, that with respect to a Floating Rate/Fixed Rate Note, the
interest rate commencing on the Fixed Rate Commencement Date and continuing,
unless otherwise specified in the applicable Pricing Supplement, until the
Maturity Date shall be the Fixed Interest Rate, if such rate is specified in
the applicable Pricing Supplement, or if no such Fixed Interest Rate is so
specified, the interest rate in effect thereon on the day immediately
preceding the Fixed Rate Commencement Date. In addition, if so specified in
the applicable Pricing Supplement, a Floating Rate Note may bear interest
calculated based upon two or more Interest Rate Bases.
The "Spread" is the number of basis points to be added to or subtracted
from the related Interest Rate Basis or Bases applicable to such Floating
Rate Note. The "Spread Multiplier" is the percentage of the related Interest
Rate Basis or Bases applicable to such Floating Rate Note by which such
Interest Rate Basis or Bases will be multiplied to determine the applicable
interest rate on such Floating Rate Note. The "Index Maturity" is the period
to maturity of the instrument or obligation with respect to which the
Interest Rate Basis or Bases will be calculated. The Spread, Spread
Multiplier, Index Maturity and other variable terms of the Floating Rate
Notes are subject to change by the Company from time to time, but no such
change will affect any Floating Rate Note previously issued or as to which an
offer has been accepted by the Company.
Each applicable Pricing Supplement will specify whether the rate of
interest on the related Floating Rate Note will be reset daily, weekly,
monthly, quarterly, semiannually, annually or such other specified period
(each, an "Interest Reset Period") and the dates on which such interest rate
will be reset (each, an "Interest Reset Date"). Unless otherwise specified in
the applicable Pricing Supplement, the Interest
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Reset Date will be, in the case of Floating Rate Notes which reset: (i)
daily, each Business Day; (ii) weekly, a Business Day that occurs in each
week as specified in the applicable Pricing Supplement (with the exception of
weekly reset Treasury Rate Notes, which will reset the Tuesday of each week
except as specified below); (iii) monthly, a Business Day that occurs in each
month as specified in the applicable Pricing Supplement; (iv) quarterly, a
Business Day that occurs in each third month as specified in the applicable
Pricing Supplement; (v) semiannually, a Business Day that occurs in each of
two months of each year as specified in the applicable Pricing Supplement;
and (vi) annually, a Business Day that occurs in one month of each year as
specified in the applicable Pricing Supplement; provided, however, that, with
respect to Floating Rate/Fixed Rate Notes, the fixed rate of interest in
effect for the period from the Fixed Rate Commencement Date until the
Maturity Date shall be specified in the applicable Pricing Supplement as
either the Fixed Interest Rate or the interest rate in effect on the day
immediately preceding the Fixed Rate Commencement Date, or if no such Fixed
Interest Rate is so specified, the interest rate in effect thereon on the
date immediately preceding the Fixed Rate Commencement Date. If any Interest
Reset Date for any Floating Rate Note would otherwise be a day that is not a
Business Day, such Interest Reset Date will be postponed to the next
succeeding day that is a Business Day, except that in the case of a Floating
Rate Note as to which LIBOR is an applicable Interest Rate Basis, in which
case if such Business Day falls in the next succeeding calendar month, such
Interest Reset Date will be the immediately preceding Business Day. As used
herein, "Business Day" means, unless otherwise specified in the applicable
Pricing Supplement, 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 any
other place of payment with respect to the applicable Notes and (i) with
respect to LIBOR Notes, such day is also a day on which dealings in U.S.
dollars are transacted in the London Interbank Market (a "London Business
Day"), (ii) with respect to Notes denominated in a Specified Currency other
than U.S. dollars or ECUs, 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 ECUs, a
day that is a non-ECU clearing day as determined by the ECU Banking
Association in Paris.
A Floating Rate Note may also have either or both of the following: (i) a
maximum numerical limitation, or ceiling, on the rate at which interest may
accrue during any interest period and (ii) a minimum numerical limitation, or
floor, on the rate at which interest may accrue during any interest period.
In addition to any maximum interest rate that may be applicable to any
Floating Rate Note pursuant to the above provisions, the interest rate on
Floating Rate Notes will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law
of general application.
Except as provided below or in an applicable Pricing Supplement, interest
will be payable in the case of Floating Rate Notes which reset: (i) daily,
weekly or monthly, on a Business Day that occurs in each week or each month
as applicable, 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 any
Interest Payment Date for any Floating Rate Note would otherwise be a day
that is not a Business Day, such Interest Payment Date will be the next
succeeding day that is a 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 if such Business Day falls in the next succeeding calendar
month, such Interest Payment Date will be the immediately preceding Business
Day. If the Maturity Date of a Floating Rate Note falls on a day that is not
a Business Day, the payment of principal, premium, if any, and interest, if
any, will be made on the next succeeding Business Day, and no interest shall
accrue for the period from and after such Maturity Date.
All percentages resulting from any calculation on Floating Rate Notes will
be to the nearest one hundred-thousandth of a percentage point, with five one
millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all dollar
amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward).
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With respect to each Floating Rate Note, accrued interest is calculated
by multiplying its face amount by an accrued interest factor. Such accrued
interest factor is computed by adding the interest factor calculated for each
day from and including the later of (i) the date of issue and (ii) the last
day to which interest has been paid or duly provided for to and including the
last date for which accrued interest is being calculated as described in the
immediately preceding paragraph. Unless otherwise specified in the applicable
Pricing Supplement, the interest factor for each such day will be computed by
dividing the interest rate applicable to such day by 360, in the case of
Notes for which the Interest Rate Basis is the CD Rate, the Commercial Paper
Rate, the Federal Funds Rate, LIBOR or the Prime Rate, or by the actual
number of days in the year in the case of Notes for which the Interest Rate
Basis is the Treasury Rate. The accrued interest factor for Notes for which
the interest rate may be calculated with reference to two or more Interest
Rate Bases will be calculated in each period by selecting one such Interest
Rate Basis for such period in accordance with the provisions of the
applicable Pricing Supplement.
The interest rate applicable to each Interest Reset Period commencing on
the Interest Reset Date with respect to such Interest Reset Period will be
the rate determined as of the "Interest Determination Date." Unless otherwise
specified in the applicable Pricing Supplement, the Interest Determination
Date with respect to the CD Rate, the Commercial Paper Rate, the Federal
Funds Rate and the Prime Rate will be the second Business Day preceding each
Interest Reset Date for the related Note; and the Interest Determination Date
with respect to LIBOR will be the second London Business Day preceding each
Interest Reset Date. With respect to the Treasury Rate, unless otherwise
specified in an applicable Pricing Supplement, the Interest Determination
Date will be the day in the week in which the related Interest Reset Date
falls on which day Treasury Bills (as defined below) are normally auctioned
(Treasury Bills are normally sold at auction on Monday of each week, unless
that day is a legal holiday, in which case the auction is normally held on
the following Tuesday, except that such auction may be held on the preceding
Friday); provided, however, that if an auction is held on the Friday on the
week preceding the related Interest Reset Date, the related Interest
Determination Date will be such preceding Friday; and provided, further, that
if an auction falls on any Interest Reset Date then the related Interest
Reset Date will instead be the first Business Day following such auction.
Unless otherwise specified in the applicable Pricing Supplement, the Interest
Determination Date pertaining to a Floating Rate Note the interest rate of
which is determined with reference to two or more Interest Rate Bases will be
the latest Business Day which is at least two Business Days prior to each
Interest Reset Date for such Floating Rate Note. Each Interest Rate Basis
will be determined and compared on such date, and the applicable interest
rate will take effect on the related Interest Reset Date, as specified in the
applicable Pricing Supplement.
Unless otherwise provided for in the applicable Pricing Supplement, The
Chase Manhattan Bank will be the Calculation Agent (the "Calculation Agent,"
which term includes any successor calculation agent appointed by the
Company), and for each Interest Reset Date will determine the interest rate
with respect to any Floating Rate Note as described below. The Calculation
Agent will notify the Company, the Paying Agent and the Trustee of each
determination of the interest rate applicable to any such Floating Rate Note
promptly after such determination is made. The Trustee will, upon the request
of the holder of any Floating Rate Note, provide the interest rate then in
effect and, if determined, the interest rate which will become effective as a
result of a determination made with respect to the most recent Interest
Determination Date relating to such Note. Unless otherwise specified in the
applicable Pricing Supplement, the "Calculation Date," where applicable,
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar 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.
Unless otherwise specified in the applicable Pricing Supplement, the
Interest Rate Basis with respect to Floating Rate Notes will be determined by
the Calculation Agent as follows:
CD Rate Notes. CD Rate Notes will bear interest at the interest rate
(calculated with reference to the CD Rate and the Spread and/or Spread
Multiplier, if any) specified in the CD Rate Notes and in the applicable
Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, "CD Rate"
means, with respect to any Interest Determination Date relating to a CD Rate
Note, the rate on such date for negotiable
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certificates of deposit having the Index Maturity designated in the
applicable Pricing Supplement 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 ("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 designated in the
applicable Pricing Supplement 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 the Calculation Date pertaining to such Interest
Determination Date, 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 of major
United States money market banks with a remaining maturity closest to the
Index Maturity designated in the applicable Pricing Supplement 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 set forth above, the CD Rate with
respect to such Interest Determination Date shall be the same as the CD Rate
in effect for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest shall be the Initial
Interest Rate).
Commercial Paper Rate Notes. Commercial Paper Rate Notes will bear
interest at the interest rate (calculated with reference to the Commercial
Paper Rate and the Spread and/or Spread Multiplier, if any) specified in the
Commercial Paper Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement,
"Commercial Paper Rate" means, with respect to any Interest Determination
Date relating to a Commercial Paper Note, the Money Market Yield (as defined
below) of the rate on that date for commercial paper having the Index
Maturity designated in the applicable Pricing Supplement, as such rate shall
be published in H.15(519), under the heading "Commercial Paper." In the event
that such rate is not published prior to 3:00 p.m., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, then the
Commercial Paper Rate shall be the Money Market Yield of the rate on such
Interest Determination Date for commercial paper of the specified Index
Maturity 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 of 30 days 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 on such Interest Determination Date 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 specified Index Maturity 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 of 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
offered rates as set forth above, the Commercial Paper Rate with respect to
such Interest Determination Date shall 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 shall be the Initial
Interest Rate).
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------- 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 period for which interest is being calculated.
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Federal Funds Rate Notes. Federal Funds Rate Notes will bear interest at
the interest rate (calculated with reference to the Federal Funds Rate and
the Spread and/or Spread Multiplier, if any) specified in the Federal Funds
Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Federal Funds Rate" means, with respect to any Interest Determination Date
relating to a Federal Funds Rate Note, 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 the Calculation Date pertaining to such
Interest Determination 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 United
States dollar Federal Funds as of 9:00 a.m., New York City time, on such
Interest Determination Date arranged by three leading brokers of 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 set forth above, the Federal Funds Rate
with respect to such Interest Determination Date shall 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
shall be the Initial Interest Rate).
LIBOR Notes. LIBOR Notes will bear interest at the interest rate
(calculated with reference to LIBOR and the Spread and/or Spread Multiplier,
if any) specified in the LIBOR Notes and in the applicable Pricing
Supplement.
Unless otherwise specified in the applicable Pricing Supplement, "LIBOR"
for each Interest Reset Date will be determined by the Calculation Agent as
follows:
(i) With respect to an Interest Determination Date relating to a LIBOR
Note, LIBOR will be either: (A) if "LIBOR Telerate" is specified in the
applicable Pricing Supplement or if such Pricing Supplement does not
specify a source for LIBOR, the rate for deposits in the London interbank
market in the Index Currency (as defined below) having the Index Maturity
designated in the applicable Pricing Supplement 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 in the applicable Pricing Supplement, 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 in the applicable Pricing
Supplement 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 in the applicable Pricing Supplement 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
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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. (or such other time specified in the applicable Pricing
Supplement), 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 in
the applicable Pricing Supplement 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 shall be the Initial Interest Rate).
"Index Currency" means the currency (including currency units and
composite currencies) specified in the applicable Pricing Supplement as the
currency with respect to which LIBOR shall be calculated. If no such currency
is specified in the applicable Pricing Supplement, the Index Currency shall
be U.S. dollars.
"Designated LIBOR Page" means the display on Page 3750 (or such other page
as is specified in the applicable Pricing Supplement) 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 in the applicable Pricing
Supplement, 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.
Unless provided otherwise in the applicable Pricing Supplement, "Principal
Financial Center" will be the capital city of the country of the specified
Index Currency, except that with respect to U.S. dollars and ECUs, the
Principal Financial Center shall be The City of New York and Brussels,
respectively.
Prime Rate Notes. Prime Rate Notes will bear interest at the interest rate
(calculated with reference to the Prime Rate and the Spread and/or Spread
Multiplier, if any) specified in the Prime Rate Notes and in the applicable
Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, "Prime
Rate" means, with respect to any Interest Determination Date, 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 pertaining to such Interest Determination 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 Reuters Screen
NYMF Page (as defined below) 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 rates
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 $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. "Reuters Screen NYMF Page" means the display
designated as Page "NYMF" on the Reuters Monitor Money Rates Service (or such
other page as may replace the NYMF Page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks).
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Treasury Rate Notes. Treasury Rate Notes will bear interest at the
interest rate (calculated with reference to the Treasury Rate and the Spread
and/or Spread Multiplier, if any) specified in the Treasury Rate Notes and in
the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Treasury Rate" means, with respect to any Interest Determination Date
relating to a Treasury Rate Note, the rate applicable to the most recent
auction of direct obligations of the United States ("Treasury Bills") having
the Index Maturity designated in the applicable Pricing Supplement, as
published in H.15(519) under the heading "Treasury Bills--auction average
(investment)" 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
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 designated in the applicable Pricing
Supplement 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 (which may include one or more of the
Agents) selected by the Calculation Agent for the issue of Treasury Bills
with a remaining maturity closest to the Index Maturity designated in the
applicable Pricing Supplement; 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 with respect to such Interest
Determination Date will be the same as the Treasury Rate in effect for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest shall be the Initial Interest
Rate).
INDEXED NOTES
Notes also may be issued with the principal amount payable at maturity or
interest to be paid thereon, or both, to be determined with reference to the
price or prices of specified commodities or stocks, the exchange rate of the
Specified Currency relative to one or more other currencies, currency units
or composite currencies specified in the Prospectus Supplement, or such other
price or exchange rate as may be specified in such Note ("Indexed Notes"), as
set forth in a Pricing Supplement relating to such Indexed Notes. In certain
cases, holders of such Indexed Notes may receive a principal amount on the
Maturity Date that is greater than or less than the face amount of the
Indexed Notes, or an interest rate that is greater than or less than the
stated interest rate on the Indexed Notes, or both, depending upon the
structure of the Indexed Note and the relative value on the Maturity Date or
at the relevant Interest Payment Date, as the case may be, of the specified
indexed item. Information as to the method for determining the principal
amount payable on the Maturity Date, the manner of determining the interest
rate, certain historical information with respect to the specified indexed
item and tax considerations associated with an investment in Indexed Notes
will be set forth in the applicable Pricing Supplement.
An investment in Indexed Notes entails significant risks that are not
associated with similar investments in a conventional fixed-rate debt
security. If the interest rate of an Indexed Note is indexed, it may result
in an interest rate that is less than that payable on a conventional
fixed-rate debt security issued by the Company at the same time, including
the possibility that no interest will be paid, and, if the principal amount
of an Indexed Note is indexed, the principal amount payable at maturity may
be less than the original purchase price of such Indexed Note, including the
possibility that no principal will be paid (but in no event shall the amount
of interest or principal paid with respect to an Indexed Note be less than
zero). Additionally, if the formula used to determine the principal amount or
interest payable with respect to such Indexed Notes contains a multiple or
leverage factor, the effect of any change in the applicable currency,
commodity or interest rate index may be increased. See "Foreign Currency
Risks."
OPTIONAL REDEMPTION BY THE COMPANY
Unless otherwise provided in the applicable Pricing Supplement, the Notes
cannot be redeemed prior to maturity by the Company and will not be subject
to any sinking fund. The Notes will be redeemable
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at the option of the Company prior to the maturity date thereof only if an
"Initial Redemption Date" is specified in the applicable Pricing Supplement.
If so specified, the Notes will be subject to redemption at the option of the
Company on any date on and after the applicable Initial Redemption Date in
whole or from time to time in part in increments of $1,000 or such other
minimum denomination specified in such Pricing Supplement (provided that any
remaining principal amount thereof shall be at least $1,000 or such minimum
denomination), at the applicable Redemption Price (as defined herein),
together with unpaid interest accrued to the date of redemption, on notice
given not more than 60 nor less than 30 calendar days prior to the date of
redemption and in accordance with the provisions of the Indenture.
"Redemption Price" means, with respect to any Note, an amount equal to the
Initial Redemption Percentage specified in the applicable Pricing Supplement
(as adjusted by the Annual Redemption Percentage Reduction specified therein,
if applicable) multiplied by the unpaid principal amount to be redeemed. The
Initial Redemption Percentage, if any, applicable to a Note shall decline on
each anniversary of the Initial Redemption Date by an amount equal to the
applicable Annual Redemption Percentage Reduction, if any, until the
Redemption Price is equal to 100% of the unpaid principal amount to be
redeemed. The Redemption Price of Original Issue Discount Notes is described
below under "--Original Issue Discount Notes."
Foreign Currency Notes may be subject to different restrictions on
redemption. See "Special Provisions Relating to Foreign Currency
Notes--Minimum Denominations, Restrictions on Maturities, Repayment and
Redemption."
REPAYMENT AT THE NOTEHOLDERS' OPTION; REPURCHASE
The Notes will be repayable by the Company at the option of the holders
thereof prior to maturity only if one or more "Optional Repayment Dates" is
specified in the applicable Pricing Supplement. If so specified, the Notes
will be subject to repayment at the option of the holders thereof on any
Optional Repayment Date in whole or in part from time to time in increments
of $1,000 or such other minimum denomination specified in the applicable
Pricing Supplement (provided that any remaining principal amount thereof
shall be at least $1,000 or such other minimum denomination), at a repayment
price equal to 100% of the unpaid principal amount to be repaid, together
with unpaid interest accrued to the date of repayment. For any Note to be
repaid, such Note must be received, together with the form thereon entitled
"Option to Elect Repayment" duly completed, by the Trustee at its corporate
trust office (or such other address specified on the applicable Pricing
Supplement or of which the Company shall from time to time notify the holders
of Notes) not more than 60 nor less than 30 calendar days prior to the date
of repayment. Exercise of such repayment option by the holder will be
irrevocable. The repayment price of Original Issue Discount Notes is
described below under "--Original Issue Discount Notes." Notwithstanding the
foregoing, the Company will comply with Section 14(e) under the Exchange Act,
to the extent applicable, and any other tender offer rules under the Exchange
Act which may then be applicable, in connection with any obligation of the
Company to purchase Notes at the option of the holders thereof as described
herein.
Only the Depositary may exercise the repayment option in respect of Global
Securities representing Book-Entry Notes. Accordingly, beneficial owners of
Global Securities that desire to have all or any portion of the Book-Entry
Notes represented by such Global Securities repaid must direct the
participant of the Depositary through which they own their interest (each, a
"Participant") to direct the Depositary to exercise the repayment option on
their behalf by delivering the related Global Security and duly completed
election form to the Trustee as aforesaid. In order to ensure that such
Global Security and election form are received by the Trustee on a particular
day, the applicable beneficial owner must so direct the Participant through
which it owns its interest before such Participant's deadline for accepting
instructions for that day. Different firms may have different deadlines for
accepting instructions from their customers. Accordingly, such beneficial
owners should consult the Participants through which they own their interest
for the respective deadlines for such Participants. All instructions given to
Participants from beneficial owners of Global Securities relating to the
option to elect repayment shall be irrevocable. In addition, at the time such
instructions are given, each such beneficial owner shall cause the
Participant
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through which it owns its interest to transfer such beneficial owner's
interest in the Global Security or Securities representing the related
Book-Entry Notes, on the Depositary's records, to the Trustee. See
"Description of Debt Securities--Book-Entry System" in the accompanying
Prospectus.
Foreign Currency Notes may be subject to different restrictions on
repayment. See "Special Provisions Relating to Foreign Currency
Notes--Minimum Denominations, Restrictions on Maturities, Repayment and
Redemption."
The Company may at any time purchase Notes at any price in the open market
or otherwise. Notes purchased by the Company may, at its discretion, be held,
resold or surrendered to the Registrar for cancellation.
DUAL CURRENCY NOTES
Dual Currency Notes are Notes as to which the Company has a one time
option, exercisable on a specified date (the "Option Election Date") in
whole, but not in part, with respect to all Dual Currency Notes issued on the
same day and having the same terms, of making all payments of principal,
premium, if any, and interest after the exercise of such option, whether at
maturity or otherwise (which payments would otherwise be made in the face
amount currency of such Notes specified in the applicable Pricing
Supplement), in the optional payment currency specified in the applicable
Pricing Supplement ("Dual Currency Notes"). The terms of the Dual Currency
Notes together with information as to the relative value of the face amount
currency compared to the optional payment currency and as to tax
considerations associated with an investment in Dual Currency Notes will also
be set forth in the applicable Pricing Supplement.
If the Company elects on any Option Election Date specified in the
applicable Pricing Supplement to pay in the optional payment currency instead
of the face amount currency, payments of interest, premium, if any, and
principal made after such Option Election Date may be worth less, at the
then-current exchange rate, than if the Company had made such payment in the
face amount currency. See "Foreign Currency Risks."
RENEWABLE NOTES
The Company may also issue from time to time variable rate renewable Notes
("Renewable Notes") which will mature on an Interest Payment Date specified
in the applicable Prospectus Supplement unless the maturity of all or a
portion of the principal amount thereof is extended in accordance with the
procedures set forth in the applicable Pricing Supplement.
EXTENSION OF MATURITY
The Pricing Supplement relating to each Fixed Rate Note (other than an
Amortizing Note) will indicate whether the Company has the option to extend
the maturity of such Fixed Rate Note for one or more periods of one or more
whole years up to but not beyond the final Maturity Date set forth in such
Pricing Supplement. If the Company has such option with respect to any such
Fixed Rate Note, the procedures will be as set forth in the applicable
Pricing Supplement.
AMORTIZING NOTES
Amortizing Notes are Notes for which payments combining principal and
interest are made in installments over the life of the Note ("Amortizing
Notes"). Payments with respect to Amortizing Notes will be applied first to
interest due and payable thereon and then to the reduction of the unpaid
principal amount thereof. Further information concerning additional terms and
conditions of any issue of Amortizing Notes will be provided in the
applicable Pricing Supplement. A table setting forth repayment information in
respect of each Amortizing Note will be included in the applicable Pricing
Supplement and set forth on such Notes.
ORIGINAL ISSUE DISCOUNT NOTES
The Company may offer Notes ("Original Issue Discount Notes") from time to
time at an issue price (as specified in the applicable Pricing Supplement)
that is less than 100% of the principal amount thereof
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(i.e., par). Original Issue Discount Notes may not bear any interest
currently or may bear interest at a rate that is below market rates at the
time of issuance. The difference between the issue price of an Original
Discount Note and par is referred to herein as the "Discount." In the event
of redemption, acceleration or acceleration of maturity of an Original Issue
Discount Note, the amount payable to the holder of such Original Issue
Discount Note will be equal to the sum of (i) the issue price (increased by
any accruals of Discount) and, in the event of any redemption by the Company
of such Original Issue Discount Note (if applicable), multiplied by the
Initial Redemption Percentage specified in the applicable Pricing Supplement
(as adjusted by the Annual Redemption Percentage Reduction, if applicable)
and (ii) any unpaid interest on such Original Issue Discount Note accrued
from the date of issue to the date of such redemption, repayment or
acceleration of maturity.
Unless otherwise specified in the applicable Pricing Supplement, for
purposes of determining the amount of Discount that has accrued as of any
date on which a redemption, repayment or acceleration of maturity occurs for
an Original Issue Discount Note, such Discount will be accrued using a
constant yield method. 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 for the applicable Original Issue Discount Note (with
ratable accruals within a compounding period), a coupon rate equal to the
initial coupon rate applicable to such Original Issue Discount Note and an
assumption that the maturity of such Original Issue Discount Note will not be
accelerated. If the period from the date of issue to the initial Interest
Payment Date for an Original Issue Discount Note (the "Initial Period") is
shorter than the compounding period for such Original Issue Discount 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 accrual of the applicable Discount may differ from the accrual
of original issue discount for purposes of the Internal Revenue Code of 1986,
as amended (the "Code").
Certain Original Issue Discount Notes may not be treated as having
original issue discount for federal income tax purposes, and Notes other than
Original Issue Discount Notes may be treated as issued with original issue
discount for federal income tax purposes. See "United States Tax
Considerations."
OTHER PROVISIONS, ADDENDA
Any provisions with respect to Notes, including the determination of an
Interest Rate Basis, the specification of Interest Rates Basis, calculation
of the interest rate applicable to a Floating Rate Note, its Interest Payment
Dates or any other matter relating thereto may be modified by the terms
specified under "Other Provisions" on the face thereof or in an Addendum
relating thereto, if so specified on the face thereof and in the applicable
Pricing Supplement.
GOVERNING LAW
The Indenture and the Notes will be governed by and construed in
accordance with the laws of the State of New York.
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SPECIAL PROVISIONS RELATING TO FOREIGN CURRENCY NOTES
GENERAL
Unless otherwise specified in the applicable Pricing Supplement, the
following provisions shall apply to Foreign Currency Notes which are in
addition to, and to the extent inconsistent therewith replace, the
description of general terms and provisions of the Notes set forth herein and
in the Prospectus. Notes denominated or payable in foreign currency units,
including ECU, are Foreign Currency Notes.
The ECU in which the Notes may be denominated or may be payable is the
same as the ECU that is from time to time used as the unit of account of the
European Community (the "EC"). Changes to the ECU may be made by the EC, in
which event the ECU will change accordingly.
Under Article 109g of the treaty establishing the European Community, as
amended by the Treaty on European Union (the "Treaty"), the currency
composition of the ECU may not be changed. The Treaty contemplates that
European monetary union will occur in three stages, the second of which began
on January 1, 1994 with the entry into force of the Treaty on European Union.
The Treaty provides that, at the start of the third stage of European
monetary union, the value of the ECU as against the currencies of the member
states participating in the third stage will be irrevocably fixed, and the
ECU will become a currency in its own right. In contemplation of that third
stage, the European Council meeting in Madrid on December 16, 1995 decided
that the name of that currency will be the Euro and that, in accordance with
the Treaty, substitution of the Euro for the ECU will be at the rate of one
Euro for one ECU. From the start of the third stage of European monetary
union, all payments in respect of the Notes denominated or payable in the ECU
will be payable in Euro at the rate then established in accordance with the
Treaty.
Foreign Currency Notes may be issued as either Certificated Notes or
Book-Entry Notes. Unless otherwise indicated in the applicable Pricing
Supplement, payment of the purchase price of Foreign Currency Notes will be
made in immediately available funds in the Specified Currency, as described
below.
PAYMENT CURRENCY
Unless otherwise indicated in the applicable Pricing Supplement,
purchasers are required to pay for Foreign Currency Notes in the Specified
Currency. Currently, there are limited facilities in the United States for
the conversion of U.S. dollars into foreign currencies. Therefore, unless
otherwise indicated in the applicable Pricing Supplement, the exchange rate
agent appointed by the Company and identified in the applicable Pricing
Supplement (the "Exchange Rate Agent," which term includes any successor
exchange rate agent appointed by the Company) will arrange for the conversion
of U.S. dollars into a Specified Currency on behalf of any purchaser of a
Foreign Currency Note to enable a prospective purchaser to deliver the
Specified Currency in payment for such Foreign Currency Note. The Exchange
Rate Agent must receive a request for any such conversion on or prior to the
third Business Day preceding the date of delivery of the Foreign Currency
Note. All costs of such exchange will be borne by such purchaser.
Unless otherwise specified on the applicable Pricing Supplement or unless
the holder of such Foreign Currency Note elects to receive payments in the
Specified Currency, payments made by the Company of principal of, premium, if
any, and interest, if any, on a Foreign Currency Note will be made in U.S.
dollars. Such U.S. dollar amount to be received by a holder will be based on
the highest bid quotation in The City of New York received by 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 the
Specified Currency payable to the holders of Notes scheduled to receive U.S.
dollar payment and at which the applicable dealer commits to execute a
contract. If such bid quotations are not available, payments to holders will
be made in the Specified Currency.
Unless otherwise specified in the applicable Pricing Supplement, a holder
of a Foreign Currency Note may elect to receive payment in such Specified
Currency for all such payments and need not file a separate
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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.
Banks in the United States offer non-U.S. dollar denominated checking or
savings account facilities in the United States only on a limited basis.
Accordingly, unless otherwise indicated in the applicable Pricing Supplement,
payments of principal of, premium, if any, and interest, if any, on, Foreign
Currency Notes to be made in a Specified Currency other than U.S. dollars
will be made to an account at a bank outside the United States, unless
alternative arrangements are made.
Except as set forth below with respect to Notes denominated or payable in
a Component Currency of the EC, 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.
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.
As used herein:
(a) "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;
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(b) "Component Currency" means any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including
without limitation ECU;
(c) "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;
(d) "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.
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.
Specific information about the currency, currency unit or composite
currency in which a particular Foreign Currency Note is denominated,
including historical exchange rates and a description of the currency and any
exchange controls, will be set forth in the applicable Pricing Supplement.
The information therein concerning exchange rates is furnished as a matter of
information only and should not be regarded as indicative of the range of or
trends in fluctuations in currency exchange rates that may occur in the
future.
Notes Denominated in the Currencies of EC Member Countries
If, pursuant to the treaty establishing the European Community, 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
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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.
MINIMUM DENOMINATIONS, RESTRICTIONS ON MATURITIES, REPAYMENT AND REDEMPTION
Notes denominated in Specified Currencies other than U.S. dollars will
have such minimum denominations and be subject to such restrictions on
maturities, repayment and redemption as are set forth in the applicable
Pricing Supplement. Any other restrictions applicable to Notes denominated in
Specified Currencies other than U.S. dollars, including restrictions related
to the distribution of such Notes, will be set forth in the related Pricing
Supplement.
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FOREIGN CURRENCY RISKS
THIS PROSPECTUS SUPPLEMENT, THE PROSPECTUS AND ANY PRICING SUPPLEMENT DO
NOT DESCRIBE ALL THE RISKS OF AN INVESTMENT IN FOREIGN CURRENCY NOTES OR
INDEXED NOTES THE PAYMENT OF WHICH IS TO BE MADE IN OR RELATED TO THE VALUE
OF A FOREIGN CURRENCY OR A COMPOSITE CURRENCY AND THE COMPANY DISCLAIMS ANY
RESPONSIBILITY TO ADVISE PROSPECTIVE PURCHASERS OF SUCH RISKS AS THEY EXIST
AT THE DATE OF THIS PROSPECTUS SUPPLEMENT OR AS SUCH RISKS MAY CHANGE FROM
TIME TO TIME. PROSPECTIVE INVESTORS SHOULD CONSULT THEIR OWN FINANCIAL AND
LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN SUCH NOTES. SUCH
NOTES ARE NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED
WITH RESPECT TO FOREIGN CURRENCY, COMPOSITE CURRENCY OR INDEXED TRANSACTIONS.
The information set forth in this Prospectus Supplement with respect to
foreign currency risks is directed to prospective purchasers who are United
States residents, and the Company disclaims any responsibility to advise
prospective purchasers of Foreign Currency Notes who are residents of
countries other than the United States with respect to any matters that may
affect the purchase, holding or receipt of payments of principal of, premium,
if any, and interest on, the Notes. Such persons should consult their own
counsel with regard to such matters.
EXCHANGE RATES AND EXCHANGE CONTROLS
An investment in Notes that are denominated in, or the payment of which is
to be or may be made in, or related to the value of, a Specified Currency
other than U.S. dollars entails significant risks that are not associated
with a similar investment in a security denominated in U.S. dollars. Such
risks include the possibility of significant changes in rates of exchange
between the U.S. dollar and the various foreign currencies (or composite
currencies) after the issuance of such Note and the possibility of the
imposition or modification of foreign exchange controls by either the U.S. or
foreign governments. Such risks generally depend on economic and political
events over which the Company has no control. In recent years, rates of
exchange between U.S. dollars and certain foreign currencies have been highly
volatile and such volatility may be expected to continue in the future.
Fluctuations in any particular exchange rate that have occurred in the past
are not necessarily indicative, however, of fluctuations in such rate that
may occur during the term of any Note. Depreciation of the Specified Currency
of a Foreign Currency Note against the U.S. dollar would result in a decrease
in the effective yield of such Note below its coupon rate and, in certain
circumstances, could result in a loss to the investor on a U.S. dollar basis.
In addition, depending on a specific term of a currency-linked Indexed Note,
changes in exchange rates relating to any of the currencies involved may
result in a decrease in the effective yield of such currency-linked Indexed
Note and, in certain circumstances, could result in a loss of all or a
substantial portion of the principal of a currency-linked Indexed Note to the
investor.
Foreign exchange rates can either be fixed by sovereign governments or
float. Exchange rates of most economically developed nations are permitted to
fluctuate in value relative to the U.S. dollar. National governments,
however, rarely voluntarily allow their currencies to float freely in
response to economic forces. Governments in fact use a variety of techniques,
such as intervention by a country's central bank or imposition of regulatory
controls or taxes, to affect the exchange rate of their currencies.
Governments may also issue a new currency to replace an existing currency or
alter the exchange rate or relative exchange characteristics by devaluation
or revaluation of a currency. Thus, a special risk in purchasing Foreign
Currency Notes or currency-linked Indexed Notes is that their U.S.
dollar-equivalent yields could be affected by governmental actions, which
could change or interfere with theretofore freely determined currency
valuation, fluctuations in response to other market forces, and the movement
of currencies across borders. There will be no adjustment or change in the
terms of such Notes in the event that exchange rates should become fixed, or
in the event of any devaluation or revaluation or imposition of exchange or
other regulatory controls or taxes, or in the event of other developments
affecting the U.S. dollar or any applicable Specified Currency.
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Governments have imposed from time to time, and may in the future impose,
exchange controls which could affect exchange rates as well as the
availability of a specified foreign currency at the time of payment of
principal of, and premium, if any, or interest, if any, on a Note. Even if
there are no actual exchange controls, it is possible that the Specified
Currency for any particular Note not denominated in U.S. dollars would not be
available at such Note's maturity. In that event, the Company would make
required payments in U.S. dollars on the basis of the market exchange rate on
the date of such payment, or if such rate of exchange is not then available,
on the basis of the market exchange rate as of the most recent practicable
date. See "Special Provisions Relating to Foreign Currency Notes--Payment
Currency."
FOREIGN CURRENCY JUDGMENTS
The Indenture and Notes will be governed by and construed in accordance
with the laws of the State of New York. If an action based on Foreign
Currency Notes were commenced in a New York court, such court would render or
enter a judgment or decree in the Specified Currency. Such judgment would
then be converted into U.S. dollars at the rate of exchange prevailing on the
date of entry of the judgment or decree. In the event an action based on
Foreign Currency Notes were commenced in a court in the United States outside
New York, it is likely that the judgment currency would be U.S. dollars, but
the method of determining the applicable exchange rate may differ.
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CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
In the opinion of Wilmer, Cutler & Pickering, special tax counsel to the
Company, the following summary accurately describes the principal United
States federal income tax consequences of the purchase, ownership and
disposition of the Notes to initial holders purchasing Notes at the "issue
price" (as defined below). This summary is based on the Internal Revenue Code
of 1986, as amended (the "Code"), administrative pronouncements, judicial
decisions and existing and proposed Treasury regulations, changes to any of
which subsequent to the date of this Prospectus Supplement may affect the tax
consequences described herein. Wilmer, Cutler & Pickering undertakes no
obligation to supplement this opinion to reflect any changes in laws that may
occur after the date hereof.
This summary discusses only Notes held as capital assets within the
meaning of Section 1221 of the Code. It does not discuss all of the tax
consequences that may be relevant to a holder in light of the holder's
particular circumstances or to holders subject to special rules, such as
certain financial institutions, insurance companies, dealers in securities or
foreign currencies, persons holding Notes as part of a straddle or hedging
transaction, or United States Holders whose functional currency (as defined
in Code Section 985) is not the U.S. dollar. Finally, this summary does not
discuss Original Issue Discount Notes (as defined below for the purposes of
this summary) which qualify as "applicable high-yield discount obligations"
under Section 163(i) of the Code. Holders of Original Issue Discount Notes
which are "applicable high-yield discount obligations" may be subject to
special rules. Persons considering the purchase of Notes should consult their
tax advisors with regard to the application of the United States federal
income tax laws to their particular situations as well as any tax
consequences arising under the laws of any state, local or foreign taxing
jurisdiction.
As used in this summary, the term "U.S. Holder" means the beneficial owner
of a Note that is: (i) for United States federal income tax purposes a
citizen or resident of the United States (including certain former citizens
and former long-term residents), (ii) a corporation, partnership or other
entity created or organized in or under the laws of the United States or of
any political subdivision thereof, (iii) an estate the income of which is
subject to United States federal income taxation regardless of its source or
(iv) 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.
As used in this summary, the term "Non-U.S. Holder" means an owner of a
Note that is, for United States federal income tax purposes: (i) a
nonresident alien individual, (ii) a foreign corporation, (iii) a foreign
estate, (iv) a foreign trust or (v) a foreign partnership, one or more of the
members of which is, for United States federal income tax purposes, a
nonresident alien individual, a foreign corporation or a nonresident alien
fiduciary of a foreign estate or trust.
As used in this summary under "United States Tax Considerations," the term
"Original Issue Discount Note" has the meaning described under "--Original
Issue Discount Notes" below. Certain Notes that constitute "Original Issue
Discount Notes" for purposes of other portions of this Prospectus Supplement
may not be treated as Original Issue Discount Notes for purposes of this
summary, and Notes other than those constituting "Original Issue Discount
Notes" for purposes of other portions of this Prospectus Supplement may be
treated as Original Issue Discount Notes for purposes of this summary. See
"Description of Notes--Original Issue Discount Notes" above.
TAX CONSEQUENCES TO UNITED STATES HOLDERS
Payments of Interest
Interest paid or accrued on Notes will be taxable to U.S. Holders as
ordinary interest income. Interest will be included in U.S. Holders' income
at the time such payments are accrued or are received in accordance with the
U.S. Holder's method of accounting for United States federal income tax
purposes, unless the Notes are classified as Original Issue Discount Notes.
The time at which interest paid or accrued with respect to Original Issue
Discount Notes is included in a U.S. Holder's income is described below.
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Original Issue Discount Notes
A Note that is issued for an issue price that is less than its stated
redemption price at maturity will generally be considered to have been issued
at an original issue discount for United States federal income tax purposes
(an "Original Issue Discount Note"). The "issue price" of a Note equals the
first price at which a substantial amount of the Notes is sold to the public
for money (not including sales to bond houses, brokers or similar persons or
organizations acting in the capacity of underwriters, placement agents or
wholesalers). The "stated redemption price at maturity" of a Note equals the
sum of all payments required under the Note other than payments of qualified
stated interest.
"Qualified stated interest" generally means stated interest
unconditionally payable as a series of payments in cash or property (other
than debt instruments of the Company) at least annually during the entire
term of the Note and equal to the outstanding principal balance of the Note
multiplied by a single fixed rate of interest. For special rules concerning
interest payments on Notes with a fixed term of one year or less, see
"Short-Term Notes" below. In addition, interest unconditionally payable at
least annually with respect to Floating Rate Notes may in certain
circumstances be treated as qualified stated interest. Interest payable at
least annually at a single Interest Rate Basis that can reasonably be
expected to measure contemporaneous variations in the cost of newly borrowed
funds, such as the CD Rate, Commercial Paper Rate, Eleventh District Cost of
Funds Rate, Federal Funds Rate, LIBOR, Prime Rate, CMT Rate and the Treasury
Rate, plus or minus a fixed Spread (or a fixed rate minus one of the above
Interest Rate Bases) will generally be treated as qualified stated interest.
See "Floating Rate and Indexed Notes" below.
A Note will not be considered to have original issue discount if the
difference between the Note's stated redemption price at maturity and its
issue price is less than a de minimis amount, i.e., 1/4 of 1 percent of the
stated redemption price at maturity multiplied by the number of complete
years to maturity. Holders of Notes with a de minimis amount of original
issue discount will generally include such original issue discount in income,
as capital gain, on a pro rata basis as principal payments are made on the
Note. Special rules apply for determining whether a Note that bears interest
for one or more accrual periods at a rate below the rate applicable for the
remaining term of such Note (e.g., Notes with teaser rates or interest
holidays) has qualified stated interest or more than a de minimis amount of
original issue discount.
A U.S. Holder of Original Issue Discount Notes will be required to include
qualified stated interest payments in income as such payments are received or
accrued in accordance with the U.S. Holder's method of accounting for federal
income tax purposes. U.S. Holders of Original Issue Discount Notes (other
than Short-Term Obligations) will be required to include original issue
discount in income for federal income tax purposes as it accrues, regardless
of their accounting method, in accordance with a constant yield method based
on a compounding of interest. (The rules for including interest on Short-Term
Obligations are described below.) As a consequence, U.S. Holders will be
required to include interest on Original Issue Discount Notes in income
before receiving the corresponding interest payments.
In general, the amount of original issue discount included in income by
the initial U.S. Holder of an Original Issue Discount Note will be the sum of
the daily portions of original issue discount with respect to such Original
Issue Discount Note for each day during the taxable year (or portion of the
taxable year) on which the U.S. Holder held the Original Issue Discount Note.
The "daily portion" of original issue discount on any Original Issue Discount
Note is determined by allocating to each day in any accrual period a ratable
portion of the original issue discount allocable to that accrual period. An
"accrual period" may be of any length and the accrual periods may vary in
length over the term of the Original Issue Discount Note, provided that each
accrual period is no longer than one year and each scheduled payment of
principal or interest occurs either on the final day of an accrual period or
on the first day of an accrual period. The amount of original issue discount
allocable to each accrual period is generally equal to the difference between
(i) the product of the Original Issue Discount Note's adjusted issue price at
the beginning of such accrual period and its yield to maturity (appropriately
adjusted to take into account the length of the particular accrual period)
and (ii) the amount of any qualified stated interest payments
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allocable to such accrual period. The "adjusted issue price" of an Original
Issue Discount Note at the beginning of any accrual period is the sum of the
issue price of the Original Issue Discount Note plus the amount of original
issue discount allocable to all prior accrual periods minus the amount of any
prior payments on the Original Issue Discount Note that were not qualified
stated interest payments. Under these rules, U.S. Holders generally will have
to include in income increasingly greater amounts of original issue discount
in successive accrual periods.
Short-Term Notes. Interest payments on a note with a fixed term of one
year or less ("Short-Term Notes") cannot qualify as qualified stated
interest. A cash method U.S. Holder of a Short-Term Note is not required to
accrue original issue discount with respect to such Notes on a current basis
unless it elects to do so. If a cash method U.S. Holder does not so elect,
any gain realized on the sale, exchange, or retirement of the Short-Term Note
will be ordinary income to the extent of the original issue discount which
has accrued on a straight-line basis through the date of the Note's sale,
exchange or retirement. A cash method U.S. Holder reporting on this basis
will be required to defer deductions for any interest paid on indebtedness
incurred to purchase or carry the Short-Term Note in an amount up to the
amount of the interest income deferred on the Short-Term Note until the
taxable period in which the deferred interest income is taken into account.
U.S. Holders who report income for federal income tax purposes on the
accrual method and certain other U.S. Holders, including banks and dealers in
securities, as well as cash method U.S. Holders who elect to do so, are
required to include original issue discount on Short-Term Notes in income as
it accrues on a straight-line basis. U.S. Holders may elect to accrue
acquisition discount (the difference between the U.S. Holder's basis in the
Note and its stated redemption price at maturity) rather than original issue
discount on a straight-line basis. In addition, in lieu of accruing either
original issue discount or acquisition discount on a straight-line basis, a
U.S. Holder may elect to accrue on the basis of a constant yield to maturity
and daily compounding.
U.S. Holders should consult their tax advisors concerning (i) the
desirability of any of the foregoing elections and (ii) the tax treatment of
interest paid on Short-Term Notes prior to the date of their retirement.
Aggregation of Certain Notes. The OID Regulations contain aggregation
rules which require in certain circumstances that if more than one type of
Note is issued as part of the same issuance of securities to a single holder,
some or all of such Notes may be treated together as a single debt instrument
with a single issue price, maturity date, yield to maturity and stated
redemption price at maturity for purposes of calculating and accruing any
original issue discount. Unless otherwise provided in the related Pricing
Supplement, the Company does not expect to treat any of the Notes as being
subject to the aggregation rules for purposes of computing original issue
discount.
Put and Call Options. Certain of the Notes (i) may be redeemable at the
option of the Company prior to their stated maturity (a "call option") and/or
(ii) may be repayable at the option of the holder prior to their stated
maturity (a "put option"). Notes containing such features may be subject to
rules that differ from the general rules discussed above. Investors intending
to purchase Notes with such features should consult their own tax advisors,
because the original issue discount consequences will depend, in part, on the
particular terms and features of the purchased Notes.
Constant Yield Election. U.S. Holders may generally, upon election,
include in income all interest (including stated interest, acquisition
discount, original issue discount, de minimis original issue discount, market
discount, de minimis market discount, and unstated interest, as adjusted by
any amortizable bond premium or acquisition premium) that accrues on a debt
instrument by using the constant yield method applicable to original issue
discount, subject to certain limitations and exceptions. This election may be
made separately for each debt instrument or class of debt instrument.
Floating Rate and Indexed Notes
Floating Rate Notes and Indexed Notes (hereinafter "Variable Notes")
acquired by U.S. Holders are subject to special rules for determining
qualified stated interest or original issue discount. A Variable Note will
qualify as a "variable rate debt instrument" if (i) its issue price does not
exceed the total
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noncontingent principal payments due under the Variable Note by more than a
specified de minimis amount and (ii) it provides for stated interest, paid or
compounded at least annually, at current values of (a) one or more qualified
floating rates, (b) a single fixed rate and one or more qualified floating
rates, (c) a single objective rate, or (d) a single fixed rate and a single
objective rate that is a qualified inverse floating rate. The specified de
minimis amount for the excess of issue price over noncontingent principal
payments is the lesser of (i) 1.5 percent times the product of the fixed
principal payments and the number of complete years to maturity from the
issue date or (ii) 15 percent of the total fixed principal payments.
A "qualified floating rate" is any variable rate where variations in the
value of such rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in which the
Variable Note is denominated. Although a multiple of a qualified floating
rate will generally not itself constitute a qualified floating rate, a
variable rate equal to the product of a qualified floating rate and a fixed
multiple that is greater than .65 but no more than 1.35 will constitute a
qualified floating rate. A variable rate equal to the product of a qualified
floating rate and a fixed multiple that is greater than .65 but not more than
1.35, increased or decreased by a fixed rate, will also constitute a
qualified floating rate. In addition, two or more qualified floating rates
that can reasonably be expected to have approximately the same values
throughout the term of the Variable Note (e.g., two or more qualified
floating rates with values within 25 basis points of each other as determined
on the Variable Note's issue date) will be treated as a single qualified
floating rate. Notwithstanding the foregoing, a variable rate that would
otherwise constitute a qualified floating rate but which is subject to one or
more restrictions such as a maximum numerical limitation (i.e., a cap), a
minimum numerical limitation (i.e., a floor), or a minimum amount of increase
or decrease (i.e., a governor) may, under certain circumstances, fail to be
treated as a qualified floating rate unless such cap, floor or governor is
fixed throughout the term of the Note or is not expected, as of the issue
date, to significantly affect the expected yield on the Note (determined
without regard to the cap, floor or governor).
An "objective rate" is a rate that is not itself a qualified floating rate
but which is determined using a single fixed formula and is based on
objective financial or economic information. A rate will not qualify as an
objective rate if it is based on information that is within the control of
the issuer (or a related party) or that is unique to the circumstances of the
issuer (or a related party), such as dividends, profits, or the value of the
issuer's stock (although a rate does not fail to be an objective rate merely
because it is based on the credit quality of the issuer). A "qualified
inverse floating rate" is any objective rate where such rate is equal to a
fixed rate minus a qualified floating rate, as long as variations in the rate
can reasonably be expected to inversely reflect contemporaneous variations in
the qualified floating rate.
If a Variable Note provides for stated interest at a fixed rate for an
initial period of one year or less followed by a variable rate that is either
a qualified floating rate or an objective rate and the value of the variable
rate on the issue date is intended to approximate the fixed rate (e.g., the
value of the variable rate on the issue date does not differ from the value
of the fixed rate by more than 25 basis points), the fixed rate and the
variable rate together will constitute either a single qualified floating
rate or objective rate, as the case may be.
If a Variable Note provides for stated interest at either a single
qualified floating rate or a single objective rate throughout its term and
the interest on such Note is unconditionally payable at least annually, all
stated interest on the Note will constitute qualified stated interest, and
will be taxed as described above under "Original Issue Discount Notes." Such
a Variable Note will not have original issue discount unless it is issued for
an amount that is less than its stated principal amount, and the amount of
such original issue discount is more than the de minimis amount described
above under "Original Issue Discount Notes." If such a Variable Note is
issued with original interest discount, the amount of original issue discount
that accrues during an accrual period is determined under the rules
applicable to fixed rate debt instruments by converting the variable rate
into an equivalent fixed rate. The qualified stated interest allocable to an
accrual period is increased (or decreased) if the interest actually paid
during an accrual period exceeds (or is less than) the interest assumed to be
paid during the accrual period pursuant to the foregoing rules.
If a variable rate debt instrument is not described in the preceding
paragraph and does not provide for any interest payable at a fixed rate, the
amount of original issue discount and qualified stated interest
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is determined by converting the variable rate debt instrument into an
equivalent fixed rate debt instrument. In general, this is accomplished by
substituting a fixed interest rate that (i) equals the value of each
qualified floating rate or qualified inverse floating rate as of the Variable
Note's issue date or (ii) reflects the yield that is reasonably expected for
an objective rate (other than a qualified inverse floating rate). If a
Variable Note provides for stated interest at a fixed rate in addition to one
or more qualified floating rates or a qualified inverse floating rate, the
fixed rate is first converted into a qualified floating rate (or qualified
inverse floating rate) with a value on the issue date equal to that of the
fixed rate. An equivalent fixed rate is then substituted for the qualified
floating rate or qualified inverse floating rate, as described above. After
the fixed rates are determined, an equivalent fixed rate debt instrument is
constructed, with terms identical to those provided under the variable rate
debt instrument except that fixed rates are substituted for the qualified
floating rates or objective rates. The amount of qualified stated interest
and original issue discount is then determined by applying the rules
described above under "Original Issue Discount Notes." The amount of
qualified stated interest or original issue discount attributable to an
accrual period will be increased (or decreased) if the interest actually
accrued or paid during an accrual period exceeds (or is less than) the
interest assumed to be accrued or paid during the accrual period under the
equivalent fixed rate debt instrument.
Contingent Debt Instruments. If a Variable Note does not qualify as a
"variable rate debt instrument," the Variable Note will be treated as a
"contingent payment debt instrument." In general, a U.S. Holder of a
contingent payment debt instrument must determine the amount of interest to
take into account during each accrual period by constructing a projected
payment schedule, as of the issue date, consisting of all noncontingent
payments and the projected amount of each contingent payment. In addition,
any gain recognized by a U.S. Holder on the sale, exchange, or retirement of
a contingent payment debt instrument will generally be treated as ordinary
interest income (and loss will be ordinary loss to the extent the amount of
interest previously included in income exceeds the amount of any
noncontingent payments and the projected amount of any contingent payments
previously made or projected to have been made on the Variable Note). U.S.
Holders of Variable Notes classified as contingent payment debt instruments
should consult their tax advisors regarding the federal income tax
consequences of the ownership and disposition of such Notes.
Sale, Exchange or Retirement of the Notes
Upon the sale, exchange or retirement of a Note, a U.S. Holder will
recognize taxable gain or loss equal to the difference between the amount
realized on the sale, exchange or retirement and such U.S. Holder's adjusted
tax basis in the Note. For these purposes, the amount realized does not
include any amount attributable to accrued interest on the Note which has not
previously been included in income. Such amounts are treated as payments of
interest. See "--Payments of Interest" above. A U.S. Holder's adjusted tax
basis in a Note will equal the U.S. Holder's cost of acquiring the Note,
increased by the amount of original issue discount the U.S. Holder previously
included in income with respect to such Note and reduced by any amortized
bond premium, principal payments, and the amount of any other payments except
payments of qualified stated interest (as defined above).
Gain or loss realized on the sale, exchange or retirement of a Note will
be capital gain or loss (except, in the case of a Short-Term Note, to the
extent of any original issue discount or acquisition discount not previously
included in the U.S. Holder's taxable income). See "--Original Issue Discount
Notes--Short Term Notes" above. For certain noncorporate U.S. Holders
(including individuals), the rate of taxation of capital gain will depend
upon (i) the U.S. Holder's holding period for the Note (with the lowest rate
available only for a Note held more than 18 months) and (ii) the U.S.
Holder's marginal tax rate for ordinary income. U.S. Holders should consult
their tax advisors with respect to applicable rates and holding periods, and
netting rules for capital losses.
Purchasers of Notes at Other than Original Issue Price or Date
The foregoing does not discuss special rules which may affect the
treatment of purchasers that acquire Notes either (a) other than at the time
of original issuance or (b) at the time of original issuance other than at
the issue price, including those provisions of United States tax law relating
to the treatment
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of "market discount," "acquisition premium," and "amortizable bond premium."
Such purchasers should consult their tax advisors as to the consequences to
them of the acquisition, ownership and disposition of the Notes.
Extension of Maturity and Reset of Interest Rate
The reset of the interest rate on, or the extension of the maturity of, a
Note pursuant to its original terms generally should not be viewed as a
taxable exchange. U.S. Holders should consult with their own tax advisors as
to the United States federal income tax consequences of such a reset or
extension.
Foreign Currency-Denominated Notes
A U.S. Holder who uses the cash method of accounting and who receives a
payment of interest (including qualified stated interest on an Original Issue
Discount Note) in a foreign currency with respect to a Foreign
Currency-Denominated Note (other than a payment of interest includible as
original issue discount on an Original Issue Discount Note) will be required
to include the U.S. dollar value of the foreign currency payment (determined
on the date the payment is received) in income when it is received regardless
of whether the payment is in fact converted to U.S. dollars at that time, and
the U.S. dollar value will be the U.S. Holder's tax basis in the foreign
currency. If a cash method U.S. Holder receives a payment described above in
U.S. dollars pursuant to an option available under such a Foreign
Currency-Denominated Note, the U.S. Holder will be required to include the
amount of the payment in income when it is received.
Interest income (including original issue discount) that accrues on a
Foreign Currency-Denominated Note is to be determined in the relevant foreign
currency. A U.S. Holder will be required to include in income the U.S. dollar
value of the amount of foreign-denominated interest income (including
original issue discount) that has accrued and is otherwise required to be
taken into account with respect to a Foreign Currency-Denominated Note during
an accrual period (other than payments of interest to a cash method U.S.
Holder described in the preceding paragraph). The U.S. dollar value of the
accrued income will be determined by translating such income at the average
rate of exchange for the accrual period or, with respect to an accrual period
that spans two taxable years, at the average rate for the partial period
within the taxable year. The U.S. Holder will recognize ordinary income or
loss with respect to accrued interest income on the date payment of the
interest is actually received or the date the Foreign Currency-Denominated
Note is sold, exchanged or retired. The amount of ordinary income or loss
recognized will equal the difference between (i) the U.S. dollar value of the
foreign currency payment received (determined on the date the payment is
received or the Note is sold, exchanged or retired) with respect to the
accrual period (or, where a U.S. Holder receives U.S. dollars, the amount of
the payment with respect to the accrual period) and (ii) the U.S. dollar
value of the interest income that accrued during the accrual period (as
determined above). A U.S. Holder may elect to translate interest income
described in this paragraph (including original issue discount) into U.S.
dollars at the spot rate on the last day of the interest accrual period (or,
in the case of a partial accrual period, the spot rate on the last day of the
taxable year) or, if the date of receipt is within five business days of the
last day of the interest accrual period, the spot rate on the date of
receipt. A U.S. Holder that makes such an election must apply it consistently
to all debt instruments from year to year and cannot change the election
without the consent of the Internal Revenue Service.
A U.S. Holder will recognize ordinary income or loss attributable to
fluctuations in currency exchange rates with respect to the principal amount
of a Foreign Currency-Denominated Note when principal payments are received
or the Note is sold, exchanged or retired. The amount of income or loss will
equal the difference between (i) the U.S. dollar value of the relevant
foreign currency-denominated principal amount determined at the spot rate on
the date the principal payment is received or the Note is sold, exchanged or
retired and (ii) the U.S. dollar value of the relevant foreign
currency-denominated principal amount determined at the spot rate on the date
the U.S. Holder acquired the Note.
Upon the sale, exchange or retirement of a Foreign Currency-Denominated
Note, the amount of a U.S. Holder's gain or loss attributable to fluctuations
in currency exchange rates with respect to both
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principal and accrued interest will be limited to the total gain or loss
realized on the disposition of the Note. Any gain or loss realized by the
U.S. Holder in excess of that attributable to fluctuations in currency
exchange rates will be capital gain or loss (except, in the case of a
Short-Term Note, to the extent of any original issue discount or acquisition
discount not previously included in the U.S. Holder's income). A special rule
for purchases and sales of publicly traded Foreign Currency-Denominated Notes
by a cash method taxpayer requires amounts of foreign currency paid or
received to be translated into U.S. dollars at the spot rate on the
settlement date of the purchase or sale. Accordingly, no exchange gain or
loss will result from currency fluctuations between the trade date and the
settlement of such a purchase or sale. An accrual method taxpayer may elect
the same treatment required of cash-method taxpayers with respect to the
purchase and sale of publicly traded Foreign Currency-Denominated Notes
provided the election is applied consistently. Such election cannot be
changed without the consent of the Internal Revenue Service.
A U.S. Holder will have a tax basis in any foreign currency received as
payment of interest or principal or upon the sale, exchange or retirement of
a Foreign Currency-Denominated Note equal to the U.S. dollar value of such
foreign currency, determined at the time of such payment, sale, exchange or
retirement. Any gain or loss realized by a U.S. Holder on a sale or other
disposition of foreign currency (including its exchange for U.S. dollars or
its use to purchase Foreign Currency-Denominated Notes) will be ordinary
income or loss.
Foreign currency gains or losses described in this section will not be
considered interest income or expense, even if attributable to payments of
interest. The source of such foreign currency gains or losses will be
determined by reference to the residence of the U.S. Holder or the "qualified
business unit" of the U.S. Holder on whose books the Note is properly
reflected. The U.S. tax consequences of a U.S. Holder's investment in Notes
denominated in more than one foreign currency will be set forth in the
applicable pricing supplement with respect to such Notes.
Backup Withholding and Information Reporting for U.S. Holders
Information reporting to the Internal Revenue Service is required for
interest payments and original issue discount accruals for certain
noncorporate U.S. Holders (including individuals). These noncorporate U.S.
Holders may be subject to backup withholding at a rate of 31 percent on
payments of principal, premium and interest (including original issue
discount, if any) on, and the proceeds of disposition of, a Note. Backup
withholding will apply only if the U.S. Holder (i) fails to furnish its
Taxpayer Identification Number ("TIN") which, for an individual, would be his
Social Security Number, (ii) furnishes an incorrect TIN, (iii) is notified by
the Internal Revenue Service that it has failed to properly report payments
of interest and dividends or (iv) under certain circumstances, fails to
certify, under penalty of perjury, that it has furnished a correct TIN and
has not been notified by the Internal Revenue Service that it is subject to
backup withholding for failure to report interest and dividend payments. The
application for exemption is available by providing a properly completed
Internal Revenue Service Form W-9. U.S. Holders should consult their tax
advisors regarding their qualification for exemption from backup withholding
and the procedure for obtaining such an exemption if applicable.
The amount of any backup withholding from a payment to a U.S. Holder will
be allowed as a credit against such U.S. Holder's United States federal
income tax liability and may entitle such U.S. Holder to a refund, provided
that the required information is furnished to the Internal Revenue Service.
TAX CONSEQUENCES TO NON-U.S. HOLDERS
Income and Withholding Tax
Under present United States federal law, and subject to the discussion
below concerning Indexed Notes and backup withholding:
(a) payments of principal, interest (including original issue discount,
if any) and premium on the Notes by the Company or any paying agent to any
Non-U.S. Holder will not be subject to the 30 percent United States
federal withholding tax, provided that, in the case of interest, (i) such
Non-U.S.
S-29
<PAGE>
Holder does not own, actually or constructively, 10 percent or more of the
total combined voting power of all classes of stock of the Company
entitled to vote, is not a controlled foreign corporation related,
directly or indirectly, to the Company through stock ownership, and is not
a bank receiving interest described in Section 881(c)(3)(A) of the Code
and (ii) the statement requirement set forth in Section 871(h) or Section
881(c) of the Code has been fulfilled with respect to the beneficial
owner, as discussed below;
(b) a Non-U.S. Holder of a Note will not be subject to United States
federal income tax on gain realized on the sale, exchange or other
disposition of such Note, unless (i) such Non-U.S. Holder is an individual
who is present in the United States for 183 days or more in the taxable
year of disposition, and either (a) such individual has a "tax home" (as
defined in Code Section 911(d)(3)) in the United States (unless such gain
is attributable to a fixed place of business in a foreign country
maintained by such individual and has been subject to foreign tax of at
least 10 percent) or (b) the gain is attributable to an office or other
fixed place of business maintained by such individual in the United States
or (ii) such gain is effectively connected with the conduct by such
Non-U.S. Holder of a trade or business in the United States.
Sections 871(h) and 881(c) of the Code require that, in order to obtain
the portfolio interest exemption from withholding tax described in paragraph
(a) above, either the beneficial owner of a Note, or a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "Financial
Institution") and that is holding the Note on behalf of such beneficial
owner, file a statement with the withholding agent that the beneficial owner
of the Note is not a U.S. Holder. The financial institution must certify
under penalties of perjury, that such statement has been received from the
beneficial owner by it or by a financial institution between it and the
beneficial owner and furnish the payor with a copy thereof. Such requirement
will be fulfilled if the beneficial owner of a Note certifies on United
States Internal Revenue Service Form W-8, under penalties of perjury, that it
is not a U.S. Holder and provides its name and address, and any Financial
Institution holding the Note on behalf of the beneficial owner files a
statement with the withholding agent to the effect that it has received such
a statement (and furnishes the withholding agent with a copy thereof). The
portfolio interest exemption from withholding tax described in paragraph (a)
above will not apply to contingent interest paid on certain Indexed Notes.
Unless otherwise provided in the applicable Pricing Supplement, the Company
does not expect any interest on the Notes to be contingent interest within
the meaning of this provision.
If a Non-U.S. Holder of a Note is engaged in a trade or business in the
United States, and if interest (including original issue discount) on the
Note or gain realized on its sale, exchange or other disposition is
effectively connected with the conduct of such trade or business, the
Non-U.S. Holder, although exempt from the withholding tax discussed in the
preceding paragraph, will generally be subject to regular United States
income tax on such effectively connected income in the same manner as if it
were a U.S. Holder. See "--Tax Consequences to United States Holders" above.
In lieu of the certificate described in the preceding paragraph, such a
Non-U.S. Holder will be required to provide to the Company a properly
executed United States Internal Revenue Service Form 4224 or successor form
in order to claim an exemption from withholding tax. In addition, if such
Non-U.S. Holder is a foreign corporation, it may be subject to a branch
profits tax equal to 30 percent (or such lower rate provided by an applicable
treaty) of its effectively connected earnings and profits for the taxable
year, subject to certain adjustments. For purposes of the branch profits tax,
interest (including original issue discount) on and any gain recognized on
the sale, exchange or other disposition of a Note will be included in the
effectively connected earnings and profits of such Non-U.S. Holder if such
interest or gain, as the case may be, is effectively connected with the
conduct by the Non-U.S. Holder of a trade or business in the United States.
Under Section 2105(b) of the United States federal estate tax law, a Note
or coupon held by an individual who is not a citizen or resident of the
United States at the time of his death will not be subject to United States
federal estate tax as a result of such individual's death, provided that the
individual does not own, actually or constructively, 10 percent or more of
the total combined voting power of all classes of stock of the Company
entitled to vote and, at the time of such individual's death, payments with
respect to such Note would not have been effectively connected to the conduct
by such individual of a trade or business in the United States.
S-30
<PAGE>
Each Non-U.S. Holder of a Note should be aware that if it does not
properly provide the required Internal Revenue Service form, or if the
Internal Revenue Service form is not properly transmitted to and received by
the United States person otherwise required to withhold United States federal
income tax, interest on the Note may be subject to United States withholding
tax at a 30 percent rate.
Backup Withholding and Information Reporting for Non-U.S. Holders
Under certain circumstances, the United States Internal Revenue Service
requires information reporting and backup withholding of United States
federal income tax at a rate of 31 percent with respect to payments to
certain noncorporate Non-U.S. Holders (including individuals). Information
reporting and backup withholding will apply unless such noncorporate Non-U.S.
Holders certify to the withholding agent that the beneficial owner of the
Note is not a U.S. Holder. This certification requirement will generally be
satisfied by the certification provided to avoid the 30 percent withholding
tax (described above).
The payment of the proceeds of a disposition of a Note by a Non-U.S.
Holder to or through the United States office of a broker or through a
non-United States branch of a United States broker generally will be subject
to information reporting and backup withholding at a rate equal to 31 percent
of the gross proceeds unless the Non-U.S. Holder certifies on Internal
Revenue Service Form W-8 that the beneficial owner of the Note is not a U.S.
Holder or otherwise establishes an exemption. The payment of the proceeds of
a disposition of a note by a Non-U.S. Holder to or through a non-United
States office of a non-United States broker will not be subject to backup
withholding or information reporting unless the non-United States broker has
certain United States relationships.
Non-U.S. Holders of Notes should consult their tax advisors regarding the
application of withholding, information reporting and backup withholding in
their particular situations, the availability of an exemption therefrom, and
the procedure for obtaining such an exemption, if available.
Any amounts withheld from a payment to a Non-U.S. Holder under the backup
withholding rules will be allowed as a credit against such Non-U.S. Holder's
United States federal income tax liability and may entitle such Non-U.S.
Holder to a refund, provided that the required information is furnished to
the United States Internal Revenue Service.
THE FEDERAL INCOME TAX SUMMARY SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S
PARTICULAR SITUATION. PROSPECTIVE U.S. HOLDERS AND NON-U.S. HOLDERS OF THE
NOTES ARE URGED TO CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE ACQUISITION, OWNERSHIP AND DISPOSITION OF THE
NOTES, INCLUDING THE TAX CONSEQUENCES UNDER FEDERAL, STATE, LOCAL, FOREIGN
AND OTHER TAX LAWS AND THE EFFECTS OF CHANGES IN SUCH LAWS.
S-31
<PAGE>
PLAN OF DISTRIBUTION
Under the terms of the Distribution Agreement dated as of August , 1997
(the "Distribution Agreement"), the Notes are being offered on a continuing
basis by the Company through Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJSC"), 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 (the "Agents"), each of which has agreed to use its
reasonable efforts to solicit purchases of the Notes. Except as otherwise
agreed by the Company and an Agent with respect to a particular Note, the
Company will pay each Agent a commission ranging from 0.125% to 0.875% of the
principal amount of each Note, depending on its maturity, sold through such
Agent. The Company will have the sole right to accept offers to purchase
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
received by it, in whole or in part, that it reasonably considers to be
unacceptable.
The Company also may sell Notes to any Agent, acting as principal, at a
discount or concession to be agreed upon at the time of sale, for resale to
one or more investors or other purchasers at a fixed offering price or at
varying prices related to prevailing market prices at the time of such resale
or otherwise, as determined by such Agent and specified in the applicable
Pricing Supplement. The Agents may offer the Notes they have purchased as
principal to other dealers. The Agents may sell Notes to any dealer at a
discount and, unless otherwise specified in the applicable Pricing
Supplement, such discount allowed to any dealer will not be in excess of the
discount to be received by such Agent from the Company. Unless otherwise
indicated in the applicable Pricing Supplement, any Note sold to an Agent as
principal will be purchased by such Agent at a price equal to 100% of the
principal amount thereof less a percentage equal to the commission applicable
to any agency sale of a Note of identical maturity, and may be resold by the
Agent to investors and other purchasers from time to time in one or more
transactions, including negotiated transactions as described above. After the
initial public offering of Notes to be resold to investors and other
purchasers, the public offering price, concession and discount may be
changed.
The Notes may also be sold by the Company directly to investors (other
than broker-dealers) in those jurisdictions in which the Company is permitted
to do so. No commission will be paid on Notes sold directly by the Company.
The Company may also accept (but not solicit) offers to purchase Notes
from time to time through one or more additional agents, acting either as
agent or principal, on substantially the same terms as those applicable to
sales of Notes to or through the Agents pursuant to the Distribution
Agreement. Any such additional agent shall, with respect to such Notes, be
deemed to be included in all references to an "Agent" or the "Agents"
hereunder.
The Company reserves the right to withdraw, cancel or modify the offer
made hereby without notice.
Each purchaser of a Note will arrange for payment as instructed by the
applicable Agent. The Agents are required to deliver the proceeds of the
Notes to the Company in immediately available funds, to a bank designated by
the Company in accordance with the terms of the Distribution Agreement, on
the date of settlement.
An Agent may be deemed to be an "underwriter" within the meaning of the
Securities Act of 1933, as amended (the "Act"). The Company has agreed to
indemnify the Agents against and contribute toward certain liabilities,
including liabilities under the Act. The Company has also agreed to reimburse
the Agents for certain expenses.
The Company does not intend to apply for the listing of the Notes on a
national securities exchange, but has been advised by the Agents that the
Agents intend to make a market in the Notes, as permitted by applicable laws
and regulation. The Agents are not obligated to do so, however, and the
Agents may discontinue making a market at any time without notice. No
assurance can be given as to the liquidity of any trading market for the
Notes.
S-32
<PAGE>
This Prospectus Supplement, together with the Prospectus, may also be
used by DLJSC in connection with offers and sales of Notes related to
market-making transactions by and through DLJSC, at negotiated prices related
to prevailing market prices at the time of sale or otherwise. DLJSC may act
as principal or agent in such transactions.
If DLJSC, a wholly owned subsidiary of the Company, participates in the
distribution of Notes, the offering of the Notes will be conducted in
accordance with Section 2720 of the NASD Conduct Rules.
Concurrently with the offering of the Notes through the Agents as
described herein, the Company may issue other Debt Securities from time to
time as described in the accompanying Prospectus. Other Debt Securities so
issued may reduce correspondingly the maximum aggregate principal amount of
Notes that may be offered by this Prospectus Supplement and the accompanying
Prospectus. See "Description of Notes."
Certain Agents and their affiliates have engaged and may in the future
engage in commercial banking and investment banking transactions with the
Company and its affiliates in the ordinary course of business.
As of January 25, 1997, Banque Paribas owned 23.7% of the issued shares
(representing 14.6% of the voting power) of Finaxa, which, as of such date,
directly and indirectly owned 22.6% of the issued shares (representing 33.0%
of the voting power) of AXA. In addition, as of January 25, 1997, AXA
directly or indirectly owned 9.7% of the issued shares (representing 15.7% of
the voting power) of Compagnie Financiere de Paribas, the public parent
company of Banque Paribas. AXA also directly or indirectly owns all of the
issued shares of AXA Banque.
S-33
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 22, 1997
PROSPECTUS
, 1997
$1,000,000,000
DONALDSON, LUFKIN & JENRETTE, INC.
DEBT SECURITIES
Donaldson Lufkin & Jenrette, Inc. (the "Company") may from time to time
offer, together or separately, (i) senior debt securities ("Senior Debt
Securities") or (ii) subordinated debt securities ("Subordinated Debt
Securities") (collectively, the "Debt Securities").
The Debt Securities offered pursuant to this Prospectus may be issued in
one or more series or issuances in U.S. dollars or in one or more foreign
currencies, currency units or composite currencies. The aggregate initial
public offering price of the securities to be offered by this Prospectus
shall not exceed $1,000,000,000 (or its equivalent in one or more foreign
currencies, currency units or composite currencies).
Specific terms of the securities in respect of which this Prospectus is
being delivered (the "Offered Securities") will be set forth in an
accompanying prospectus supplement (a "Prospectus Supplement"), together with
the terms of the offering of the Offered Securities, the initial price
thereof and the net proceeds from the sale thereof. The Prospectus Supplement
will set forth with regard to the particular Offered Securities, without
limitation, the following: the ranking as senior or subordinated debt
securities, the specific designation, aggregate principal amount, authorized
denomination, maturity, rate (which may be fixed or variable) or method of
calculation of interest and dates for payment thereof, and any
exchangeability, conversion, redemption, prepayment or sinking fund
provisions and any listing on a securities exchange. Unless otherwise
indicated in the Prospectus Supplement, the Company does not intend to list
any of the Debt Securities on a national securities exchange.
The Offered Securities may be offered directly, through agents designated
from time to time, through dealers or through underwriters. Such agents,
dealers or underwriters may act alone or with other agents, dealers or
underwriters. See "Plan of Distribution." Any such agents, dealers or
underwriters will be set forth in a Prospectus Supplement. If an agent of the
Company, or a dealer or underwriter is involved in the offering of the
Offered Securities, the agent's commission, dealer's purchase price,
underwriter's discount and net proceeds to the Company, as the case may be,
will be set forth in, or may be calculated from, the Prospectus Supplement.
Any underwriters, dealers or agents participating in the offering may be
deemed "underwriters" within the meaning of the Securities Act of 1933, as
amended.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
<PAGE>
CERTAIN PERSONS PARTICIPATING IN THE DISTRIBUTION OF THE OFFERED SECURITIES
MAY ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE
PRICE OF THE OFFERED SECURITIES OR OTHER DEBT SECURITIES. SPECIFICALLY, THE
AGENTS MAY OVER-ALLOT IN CONNECTION WITH THE OFFERING, AND MAY BID FOR, AND
PURCHASE, OFFERED SECURITIES IN THE OPEN MARKET. SUCH TRANSACTIONS, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME AND WILL BE CARRIED OUT IN
ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS.
2
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The Registration
Statement of which this Prospectus forms a part, as well as reports, proxy
statements and other information filed by the Company, may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549; 7 World Trade Center, New York,
New York 10048; and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549. Such material may also be
accessed electronically by means of the Commission's home page on the
Internet at http://www.sec.gov. The Company's common stock, par value $0.10
per share (the "Common Stock"), is listed on The New York Stock Exchange (the
"NYSE"), and reports and other information concerning the Company can also be
inspected at the office of The New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
This Prospectus constitutes a part of the Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Offered Securities. This
Prospectus does not contain all of the information set forth in such
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Offered Securities. Any
statements contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed with the
Commission or incorporated by reference herein are not necessarily complete,
and in each instance reference is made to the copy of such document so filed
for a more complete description of the matter involved. Each such statement
is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1996, Quarterly Report on Form 10-Q for the quarter ended March 31, 1997,
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and
Current Report on Form 8-K filed on April 11, 1997, previously filed by the
Company with the Commission, are incorporated by reference in this
Prospectus.
All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the termination of the offering of the Offered Securities offered hereby,
shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statements as modified
or superseded shall be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may
be incorporated by reference in this Prospectus (other than certain exhibits
to such documents). Requests for such documents should be directed to
Donaldson, Lufkin & Jenrette, Inc., 277 Park Avenue, New York, New York
10172, Attention: Corporate Secretary (Telephone: (212) 892-3000).
3
<PAGE>
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement,
proceeds from the sale of the Offered Securities will be used by the Company
for general corporate purposes and initially may be temporarily invested in
short-term securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED
---------------------------------- JUNE 30,
1992 1993 1994 1995 1996 1997
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges (1)............... 1.21 1.20 1.10 1.11 1.16 1.17
</TABLE>
- ------------
(1) For the purpose of calculating the ratio of earnings to fixed charges
(i) earnings consist of income before provision for income taxes and
fixed charges and (ii) fixed charges consist of interest expense and
one-third of rental expense which is deemed representative of an
interest factor.
4
<PAGE>
THE COMPANY
The Company is a leading integrated investment and merchant bank that
serves institutional, corporate, governmental and individual clients. The
Company's businesses include securities underwriting, sales and trading;
merchant banking; financial advisory services; investment research;
correspondent brokerage services; and asset management. While results have
fluctuated from year to year, for the years 1992 through 1996, the Company's
total revenues and net income increased by a compound annual growth rate of
20.4% and 18.7%, respectively. The Company's average annual after-tax return
on common equity for the past five years was 23.6%. At June 30, 1997, the
Company had total assets of $69.7 billion and total stockholders' equity of
$1.8 billion.
The Company's principal strategy is to focus its resources on certain core
businesses where management believes the Company can compete profitably and
be among the leading participants in each targeted market. Over the past
several years, the Company has significantly expanded the scope of its
business activities and its customer base, both in the U.S. and
internationally. It has established strong positions in selected high-margin
activities, including equity and high-yield corporate securities underwriting
as well as merchant banking, and has increased its market share in a broad
range of businesses. Key elements of this expansion have been the Company's
recruitment of experienced professionals during periods of turmoil in the
securities industry, the continued development and retention of the Company's
existing personnel at all levels and the continuity of senior management. In
addition, the Company historically has emphasized economic and investment
research in the development of its business and believes that its commitment
to research has been an important contributor to its success.
The Company conducts its business through three principal operating
groups, each of which is an important contributor to revenues and earnings:
the Banking Group, which includes the Company's Investment Banking, Merchant
Banking and Emerging Markets groups; the Capital Markets Group, consisting of
the Company's institutional debt and equity businesses as well as Sprout, its
venture capital affiliate; and the Financial Services Group, composed of its
Pershing clearing division, high-net-worth retail brokerage and asset
management businesses.
The Company's Banking Group is a major participant in the raising of
capital and the providing of financial advice to companies throughout the
U.S. and has significantly expanded its activities abroad. Through its
Investment Banking group, the Company manages and underwrites public
offerings of securities, arranges private placements and provides advisory
and other services in connection with mergers, acquisitions, restructurings
and other financial transactions. Its Merchant Banking group pursues direct
investments in a variety of areas through a number of investment vehicles
funded with capital provided primarily by institutional investors, the
Company and its employees. Since the Company began investing in leveraged
investments in 1985, it has achieved an average annual internal rate of
return substantially higher than comparable industry benchmarks. The Emerging
Markets group specializes in client advisory services, merchant banking and
the underwriting, sales and trading of securities in Latin America, Asia and
certain other international markets. In addition, the Company recently
acquired Phoenix Group Limited, a leading financial advisory firm in the
United Kingdom.
The Capital Markets Group encompasses a broad range of activities
including trading, research, origination and distribution of equity and
fixed-income securities, private equity investments and venture capital. Its
focus is primarily client-driven, in contrast to that of many other
securities firms which emphasize proprietary trading, an approach that
reduces the Company's exposure to market volatility. Its Fixed-Income
division provides institutional clients with research, trading and sales
services for a broad range of fixed-income products including high-yield
corporate, investment-grade corporate, U.S. government and mortgage-backed
securities. The Institutional Equities division provides institutional
clients with research, trading and sales services in U.S. listed and
over-the-counter equity securities. In addition, the Company's Equity
Derivatives division provides a broad range of equity and index options
products, while Sprout is one of the oldest and largest groups in the private
equity investment and venture capital industry.
The Company's Financial Services Group consists of those businesses that
serve individual investors and financial intermediaries. The group's largest
unit, the Pershing Division, provides trade execution,
5
<PAGE>
clearing and communications services. The group's three other businesses deal
primarily with individual investors. DLJ Asset Management provides money
management and trust services to corporations, high-net-worth individuals and
families. The Company's 300-broker Investment Services Group provides a full
range of traditional, research-based brokerage services, and PC Financial
Network is one of the country's largest on-line discount brokerage services.
Founded in 1959, the Company initially focused on providing in-depth
investment research to institutional investors. In 1970, the Company became
the first member firm of the NYSE to be owned publicly. Fifteen years later,
the Company was purchased by The Equitable Life Assurance Society of the
United States. Prior to October 1995, the Company was an independently
operated, wholly owned (direct and indirect) subsidiary of The Equitable
Companies Incorporated ("EQ") (EQ and its subsidiaries other than the
Company, collectively, "Equitable"). After the completion of an initial
public offering in October 1995, Equitable's ownership in the Company was
reduced from 100% to 80.2%. Equitable, which as of March 31, 1997, owned
approximately 78.2% of the Company's issued and outstanding common stock, is
a diversified financial services organization and one of the world's largest
investment management organizations. AXA-UAP is EQ's largest stockholder,
beneficially owning at March 31, 1997, approximately 60.7% of EQ's
outstanding shares of common stock and $392.2 million stated value of EQ's
Series E convertible preferred stock.
The principal executive offices of the Company are located at 277 Park
Avenue, New York, NY, 10172 and its telephone number is (212) 892-3000.
6
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 150,000,000 shares
of Common Stock, par value $0.10 per share and 25,000,000 shares of Preferred
Stock, par value $0.01 per share. As of August 8, 1997, the Company had
55,801,730 shares of Common Stock outstanding. In October 1996, the Company
exercised its option under the terms of the $8.83 Cumulative Preferred Stock
agreement to exchange all outstanding shares of Cumulative Exchangeable
Preferred Stock for $225 million in aggregate principal amount of 9.58%
Subordinated Exchange Notes due October 15, 2003. In November 1996, the
Company issued 4,000,000 shares of Fixed/Adjustable Rate Cumulative Preferred
Stock, Series A, with a liquidation preference of $50 per share. The
following summary description of the capital stock of the Company is
qualified in its entirety by reference to the Certificate of Incorporation
and the Bylaws of the Company, copies of which have been filed with the
Commission.
COMMON STOCK
Subject to the rights of the holders of any Preferred Stock which may be
outstanding, each holder of Common Stock on the applicable record date is
entitled to receive such dividends as may be declared by the Board of
Directors out of funds legally available therefor, and, in the event of
liquidation, to share pro rata in any distribution of the Company's assets
after payment or providing for the payment of liabilities and the liquidation
preference of any outstanding Preferred Stock. Each holder of Common Stock is
entitled to one vote for each share held of record on the applicable record
date on all matters presented to a vote of stockholders, including the
election of directors. Holders of Common Stock have no cumulative voting
rights or preemptive rights to purchase or subscribe for any stock or other
securities, and there are no conversion rights or redemption or sinking fund
provisions with respect to such stock. All outstanding shares of Common Stock
are fully paid and nonassessable.
The Common Stock is listed on the NYSE under the symbol "DLJ."
The transfer agent for the Common Stock is First Chicago Trust Company of
New York.
PREFERRED STOCK
The Company's Certificate of Incorporation authorizes 25,000,000 shares of
Preferred Stock. The Company's Board of Directors has the authority to issue
shares of Preferred Stock in one or more series and to fix, by resolution,
the terms of such securities, without any further vote or action by the
stockholders. The Company has designated 4,000,000 shares of Preferred Stock
as Fixed/Adjustable Rate Cumulative Preferred Stock, Series A.
As of June 30, 1997, the Company had outstanding 4,000,000 shares of
Fixed/Adjustable Rate Cumulative Preferred Stock, Series A (the "Series A
Preferred Stock") with an aggregate liquidation value of $200 million. The
Series A Preferred Stock is entitled to cumulative cash dividends, as, if and
when declared by the Board of Directors or a duly authorized committee
thereof, out of funds legally available therefor. The initial dividend for
the dividend period commencing on November 22, 1996 to (but excluding)
February 28, 1997 was $0.8085 per share and was payable on February 28, 1997.
Thereafter, dividends on the Series A Preferred Stock will be payable
quarterly, as, if and when declared by the Board of Directors of the Company
on February 28, May 30, August 30 and November 30 of each year (each a
"Dividend Payment Date") at the annual rate of 5.94% or $2.97 per share
through November 30, 2001. After November 30, 2001, the applicable rate per
annum for each dividend period beginning on or after November 30, 2001 will
be equal to 0.50% plus the highest of three pre-selected rates as determined
in advance of such dividend period, but not less than 6.44% nor greater than
12.44% (without taking into account any adjustments). The holders of shares
of the Series A Preferred Stock generally will not be entitled to vote,
unless the equivalent of six quarterly dividends payable on the Series A
Preferred Stock or any other class or series of preferred stock is in default
or as expressly required by applicable law. On or after November 30, 2001,
each share of the Series A Preferred Stock will be redeemable by the Company,
in whole or in part, out of funds legally available therefor, at a redemption
price of $50 per share, together in each case with accrued and unpaid
dividends (whether or not declared) to the date fixed
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for redemption. Holders of the Series A Preferred Stock will have no right to
require redemption of the Series A Preferred Stock, and the Company may not
redeem, the Series A Preferred Stock prior to November 30, 2001 except under
certain limited circumstances.
DESCRIPTION OF DEBT SECURITIES
The Company's Debt Securities may constitute either senior debt securities
("Senior Debt Securities") or subordinated debt securities ("Subordinated
Debt Securities") of the Company. The Senior Debt Securities may be issued
under an indenture (the "Senior Debt Indenture") to be entered into between
Donaldson, Lufkin & Jenrette, Inc., as issuer, and a trustee to be named in
the applicable Prospectus Supplement (the "Senior Debt Securities Trustee").
The Subordinated Debt Securities may be issued under an indenture (the
"Subordinated Debt Indenture") to be entered into between Donaldson, Lufkin &
Jenrette, Inc., as issuer and a trustee to be named in the applicable
Prospectus Supplement (the "Subordinated Debt Securities Trustee"). The
Senior Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as
the "Indentures." The Senior Debt Securities Trustee and the Subordinated
Debt Securities Trustee, in their capacity as trustee under either or both of
the Indentures, are individually referred to herein as the "Trustee" and
collectively as the "Trustees." Defined terms with respect to the description
of the Debt Securities shall have the meaning set forth below in "Certain
Definitions."
Forms of the Indentures have been or will be incorporated by reference or
included herein as exhibits to the Registration Statement of which this
Prospectus is a part and will also be available for inspection at the offices
of the Trustees. The Indentures will be subject to and governed by the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Section
references contained herein are to the applicable Indenture. The following
summaries of certain provisions of the Indentures do not purport to be
complete, and where reference is made to particular provisions of the
Indentures, such provisions, including definitions of certain terms, are
incorporated by reference as a part of such summaries or terms, which are
qualified in their entirety by such reference. The Indentures are
substantially identical except for provisions relating to subordination and
the Company's negative pledge.
GENERAL
Neither of the Indentures limits the aggregate principal amount of Debt
Securities which may be issued thereunder and each Indenture provides that
Debt Securities may be issued thereunder from time to time in one or more
series. The Debt Securities will be direct, unsecured senior or subordinated
obligations of the Company. Except as described under "--Negative Pledge,"
neither Indenture limits other indebtedness or securities which may be
incurred or issued by the Company or any of its subsidiaries or contains
financial or similar restrictions on the Company or any of its subsidiaries.
The operations of the Company are conducted through its subsidiaries, and,
therefore, the Company is dependent upon the earnings and cash flow of its
subsidiaries to meet its obligations, including obligations under the Debt
Securities. The Debt Securities will be effectively subordinated to all
indebtedness of the Company's subsidiaries. The Company's rights and the
rights of its creditors, including holders of Debt Securities, to participate
in the distribution of assets of any subsidiary upon such subsidiary's
liquidation or reorganization will be subject to prior claims of such
subsidiary's creditors, including trade creditors, except to the extent the
Company may itself be a creditor with recognized claims against such
subsidiary. In addition, net capital requirements under the Exchange Act and
New York Stock Exchange rules applicable to certain of the Company's
subsidiaries could limit the payment of dividends and the making of loans and
advances to the Company by such subsidiaries.
The applicable Prospectus Supplement which accompanies this Prospectus,
sets forth where applicable the following terms of, and information relating
to, the Debt Securities offered thereby: (i) the ranking of such Debt
Securities as senior or subordinated debt securities; (ii) the designation of
such Debt Securities; (iii) the aggregate principal amount of such Debt
Securities; (iv) the date or dates on which principal of and premium, if any,
on such Debt Securities is payable; (v) the rate or rates at which such Debt
Securities shall bear interest, if any, or the method by which such rate
shall be determined, and the basis on which interest shall be calculated if
other than a 360-day year consisting of twelve 30-day months,
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the date or dates from which such interest will accrue and on which such
interest will be payable and the related record dates; (vi) if other than
the offices of the Trustee, the place where the principal of, and any premium
or interest on, such Debt Securities will be payable; (vii) any redemption,
repayment or sinking fund provisions; (viii) if other than denominations of
$1,000 or multiples thereof, the denominations in which such Debt Securities
will be issuable; (ix) if other than the principal amount thereof, the portion
of the principal amount due upon acceleration; (x) if other than U.S. dollars,
the currency or currencies (including currency units or composite currencies)
in which such Debt Securities are denominated or payable; (xi) whether such
Debt Securities shall be issued in the form of a Global Security or securities;
(xii) any other specific terms of such Debt Securities; and (xiii) the identity
of any trustees, depositories, authenticating or paying agents, transfer agents
or registrars with respect to such Debt Securities. (Section 2.3)
Unless otherwise specified in the accompanying Prospectus Supplement,
principal and premium, if any, will be payable, and the Debt Securities will
be transferable and exchangeable without any service charge, at the office of
the Trustee. However, the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection with any
such transfer or exchange. (Sections 2.7, 4.1 and 4.2)
Unless otherwise specified in the accompanying Prospectus Supplement,
interest on any series of Debt Securities will be payable on the interest
payment dates set forth in the accompanying Prospectus Supplement to the
persons in whose names the Debt Securities are registered at the close of
business on the related record date and will be paid, at the option of the
Company, by wire transfer or by checks mailed to such persons. (Sections 2.7,
4.1 and 4.2)
If the Debt Securities are issued as Original Issue Discount Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount, the Federal income tax consequences and other special
considerations applicable to such Original Issue Discount Securities will be
generally described in the Prospectus Supplement.
BOOK-ENTRY SYSTEM
If so specified in the accompanying Prospectus Supplement, Debt Securities
of any series may be issued under a book-entry system in the form of one or
more global Debt Securities (each a "Global Security"). Each Global Security
will be deposited with, or on behalf of a depositary (the "Depositary"),
which will be specified in the accompanying Prospectus Supplement. The Global
Securities will be registered in the name of the Depositary or its nominee.
Participants of the Depositary may include securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other
organizations. Access to the Depositary's book-entry system may also be
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with participants, either
directly or indirectly.
Upon the issuance of a Global Security in registered form, the Depositary
will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such
Global Security to the accounts of participants. The accounts to be credited
will be designated by the underwriters, dealers or agents or another clearing
agency whose participants' accounts at that clearing agency will be credited
as designated by the underwriters, dealers or agents. Ownership of beneficial
interests in the Global Security will be limited to participants or persons
that may hold interests through participants. Ownership of beneficial
interests by participants in the Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained
by such participants. The laws of some jurisdictions may require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such laws may impair the ability to own, transfer or pledge
a beneficial interest in a Global Security.
So long as the Depositary or its nominee is the registered owner of a
Global Security, it will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as set forth below, owners of a beneficial
interest in such
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Global Security will not be entitled to have the Debt Securities represented
thereby registered in their names, will not receive or be entitled to receive
physical delivery of certificates representing the Debt Securities represented
thereby and will not be considered the owners or holders thereof under the
applicable Indenture. Accordingly, each person owning a beneficial interest
in such Global Security must rely on the procedures of the Depositary and,
if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a holder
under the applicable Indenture.
Payment of principal of, and interest on, the Debt Securities will be made
to the Depositary or its nominee, as the case may be, as the registered owner
and holder of the Global Security representing such Debt Securities. None of
the Company, the Trustee, any paying agent or registrar for the Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Security or for maintaining, supervising or receiving
any records relating to such beneficial ownership interests.
A Global Security may not be transferred except as a whole by the
Depositary to a nominee or successor of the Depositary or by a nominee of the
Depositary to another nominee of the Depositary. A Global Security
representing all but not part of the Debt Securities being offered pursuant
to the applicable Prospectus Supplement is exchangeable for Debt Securities
in definitive form of like tenor and terms if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as depositary for such
Global Security or in other cases specified in the Prospectus Supplement, and
in either case, a successor depositary is not appointed by the Company within
90 days of receipt by the Company of such notice or of the Company becoming
aware of such ineligibility, or (ii) the Company in its sole discretion at
any time determines not to have all of the Debt Securities represented by a
Global Security and notifies the Trustee thereof. A Global Security
exchangeable pursuant to the preceding sentence shall be exchangeable for
Debt Securities registered in such names and in such authorized denominations
as the Depositary for such Global Security shall direct.
Other specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
and a description of the Depositary will be provided in the Prospectus
Supplement.
SENIOR DEBT
Payment of the principal of, premium, if any, and interest, if any, on
Senior Debt Securities issued under the Senior Debt Indenture will rank pari
passu with all other unsecured and unsubordinated debt of the Company.
SUBORDINATED DEBT
Payment of the principal of, premium, if any, and interest, if any, on
Subordinated Debt Securities issued under the Subordinated Debt Indenture
will be subordinate and junior in right of payment, to the extent and in the
manner set forth in the Subordinated Debt Indenture, to all Senior
Indebtedness of the Company. The Subordinated Debt Indenture does not contain
any limitation on the amount of Senior Indebtedness that can be incurred by
the Company.
The Subordinated Debt Indenture provides that no payment may be made by or
on behalf of the Company on account of any obligation or, to the extent the
subordination thereof is permitted by applicable law, claim in respect of the
Subordinated Debt Securities, including the principal of, premium, if any, or
interest on the Subordinated Debt Securities, or to redeem (or make a deposit
in redemption of), defease (other than payments made by the Trustee pursuant
to the provisions of the Indenture described under "--Discharge, Defeasance
and Covenant Defeasance" with respect to a defeasance permitted by the
Indenture, including the subordination provisions thereof) or acquire any of
the Subordinated Debt Securities for cash, property or securities, (i) upon
the maturity of the Designated Senior Indebtedness or any other Senior
Indebtedness with an aggregate principal amount in excess of $1.0 million by
lapse of time, acceleration or otherwise, unless and until all principal of,
premium, if any, and interest on such Senior Indebtedness and all other
obligations in respect thereof are first paid in full
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in cash or cash equivalents or such payment is duly provided for, or unless
and until any such maturity by acceleration has been rescinded or waived or
(ii) in the event of default in the payment of any principal of, premium, if
any, or interest on or any other amount payable in respect of the Designated
Senior Indebtedness or any other Senior Indebtedness with an aggregate
principal amount in excess of $1.0 million when it becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration or
otherwise, unless and until such payment default has been cured or waived or
has otherwise ceased to exist.
Upon the happening of a default (any event that, after notice or passage
of time would be an event of default) or an event of default (any event that
permits the holders of Senior Indebtedness or their representative or
representatives immediately to accelerate its maturity) with respect to any
Senior Indebtedness, other than a default in payment of the principal of,
premium, if any, or interest on such Senior Indebtedness, upon written notice
of such default or event of default given to the Company and the Trustee by
the holders of a majority of the principal amount outstanding of the
Designated Senior Indebtedness or their representative or, at such time as
there is no Designated Senior Indebtedness, by the holders of a majority of
the principal amount outstanding of all Senior Indebtedness or their
representative or representatives or, if such default or event of default
results from the acceleration of the Subordinated Debt Securities,
immediately upon such acceleration, then, unless and until such default or
event of default has been cured or waived or otherwise has ceased to exist,
no payment may be made by or on behalf of the Company with respect to any
obligation or claim in respect of the Subordinated Debt Securities, including
the principal of, premium, if any, or interest on the Subordinated Debt
Securities or to redeem (or make a deposit in redemption of), defease or
acquire any of the Subordinated Debt Securities for cash, property or
securities. Notwithstanding the foregoing, unless the Senior Indebtedness in
respect of which such default or event of default exists has been declared
due and payable in its entirety within 180 days after the date written notice
of such default or event of default is delivered as set forth above or the
date of such acceleration as the case may be (the "Payment Blockage Period"),
and such declaration or acceleration has not been rescinded, the Company
shall be required then to pay all sums not paid to the Holders of the
Subordinated Debt Securities during the Payment Blockage Period due to the
foregoing prohibitions and to resume all other payments as and when due on
the Subordinated Debt Securities. Any number of such notices may be given;
provided however, that (i) during any 360 consecutive days, only one Payment
Blockage Period shall commence and (ii) any such default or event of default
that existed upon the commencement of a Payment Blockage Period may not be
the basis for the commencement of any other Payment Blockage Period, unless
such default or event of default shall have been cured or waived for a period
of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of any obligation or claim in respect of the Subordinated Debt
Securities at a time when such payment or distribution is prohibited by the
foregoing provisions, such payment or distribution shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders
of the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full
in cash or cash equivalents of all such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
Upon any distribution of assets of the Company upon any dissolution,
winding up, total or partial liquidation or reorganization or readjustment of
the Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or a similar proceeding or upon assignment for the benefit of
creditors, or any other marshaling of the assets and liabilities of the
Company or otherwise, (i) the holders of all Senior Indebtedness would first
be entitled to receive payment in full in cash or cash equivalents (or have
such payment duly provided for) of the principal, premium, if any, and
interest payable in respect
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therefor before the Holders would be entitled to receive any payment on
account of the principal of, premium, if any, and interest on the
Subordinated Debt Securities, and (ii) any payment or distribution of assets
of the Company of any kind or character, from any source, whether in cash,
property or securities to which the Holders or the Trustee on behalf of the
Holders would be entitled, except for the subordination provisions contained
in the Indenture, would be paid by the liquidating trustee or agent or other
person making such a payment or distribution directly to the holders of
Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or provide for the payment in full in
cash or cash equivalents of all such Senior Indebtedness, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are authorized to demand specific performance of the
provisions with respect to subordination in the Indenture at any time when
the Company or any Holder shall have failed to comply with any provision with
respect to subordination in the Indenture applicable to it, and the Company
and each Holder irrevocably waives any defense based on the adequacy of a
remedy at law that might be asserted as a bar to the remedy of specific
performance of such subordination provision in any action brought therefor by
the holders of the Senior Indebtedness and their respective representatives.
By reasons of such subordination, in the event of the liquidation or
insolvency of the Company, creditors of the Company who are not holders of
Senior Indebtedness, including Holders of the Subordinated Debt Securities,
may recover less, ratably, than holders of Senior Indebtedness.
No provision contained in the Indenture or the Subordinated Debt
Securities will affect the obligation of the Company, which is absolute and
unconditional, to pay, when due, principal of, premium, if any, and interest
on the Subordinated Debt Securities. The subordination provisions of the
Indenture and the Subordinated Debt Securities will not prevent the
occurrence of any Event of Default under the Indenture or limit the rights of
the Trustee or any Holder, except as provided in the seven preceding
paragraphs, to pursue any other rights or remedies with respect to the
Subordinated Debt Securities.
NEGATIVE PLEDGE
The Senior Debt Indenture provides that the Company and any successor
corporation will not, and will not 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 defined in the
Senior Debt Indenture) on the Voting Stock of Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC") or any other Subsidiary of the Company which
shall hereafter succeed by merger or otherwise to all or substantially all of
the business of DLJSC (a "DLJSC Successor"), without making effective
provision whereby the Senior Debt Securities will be secured equally and
ratably with such secured indebtedness. (Senior Debt Indenture, Section 4.3)
CERTAIN DEFINITIONS
The term "Holder" or "Securityholder" as defined in the applicable
Indenture means the registered holder of any Debt Security with respect to
registered Debt Securities and the bearer of any unregistered Debt Security
or any coupon appertaining thereto, as the case may be.
The term "Designated Senior Indebtedness" means any class of Senior
Indebtedness the aggregate principal amount outstanding of which exceeds $50
million and which is specifically designated in the instrument evidencing
such Senior Indebtedness or the agreement under which such Senior
Indebtedness arises as "Designated Senior Indebtedness."
The term "Original Issue Discount Security" as defined in the applicable
Indenture means any Debt Security that provides for an amount less than the
principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2 of the
applicable Indenture.
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The term "Senior Indebtedness" as defined in the Subordinated Debt
Indenture means the principal of and premium, if any, and interest on: (a)
all indebtedness of the Company, whether outstanding on the date of the
Subordinated Debt Indenture or thereafter created, (i) for money borrowed by
the Company; (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company; (iii) in
respect of letters of credit and acceptances issued or made by banks; or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the payment of
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and supplements
to, any such indebtedness. As used in the preceding sentence, the term
"purchase money indebtedness" means indebtedness evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or
other security interest) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, unless by its terms such indebtedness is
subordinated to other indebtedness of the Company. Notwithstanding anything
to the contrary in the Subordinated Debt Indenture or the Subordinated Debt
Securities, Senior Indebtedness shall not include, (i) any indebtedness of
the Company which, by its terms or the terms of the instrument creating or
evidencing it, is subordinate in right of payment to or pari passu with the
Subordinated Debt Securities or (ii) any indebtedness of the Company to a
subsidiary of the Company. (Subordinated Debt Indenture, Section 1.1)
The term "Subsidiary" as defined in the applicable Indenture means with
respect to any Person, any corporation, association or other business entity
of which more than 50% of the outstanding Voting Stock (as defined in the
applicable Indenture) is owned directly or indirectly, by such Person and one
or more other Subsidiaries of such Person.
RESTRICTIONS ON MERGERS AND SALES OF ASSETS
Under each Indenture, 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:
(a) either (i) the Company shall be the continuing Person or (ii) 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 Debt Securities
and under the applicable 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 in the applicable Indenture
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 the terms, subject to customary exceptions; and (b) the Company shall
have delivered to the Trustee an officer's certificate to the effect that
immediately after giving effect to such transaction, no Default (as defined
in the applicable Indenture) shall have occurred and be continuing and an
opinion of counsel as to the matters set forth in paragraph (a) above.
(Section 5.1)
EVENTS OF DEFAULT
Events of Default defined in the applicable Indenture with respect to the
Debt Securities of any series are: (a) the Company defaults in the payment of
all or any part of the principal of any Debt 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 Debt 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
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breaches any other covenant or agreement of the Company in the applicable
Indenture with respect to any Debt Security of such series or in the Debt
Securities of such series and such default or breach continues for a period
of 60 consecutive 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 Debt Securities of all
series under the applicable Indenture affected thereby; (d) an involuntary
case or other proceeding shall be commenced against the Company or DLJSC
(including for purposes of paragraph (d) and (e) hereof any DLJSC Successor)
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 (i) 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, (ii) 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 (iii)
effects any general assignment for the benefit of creditors; (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 the applicable Indenture or
shall thereafter 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 Debt Securities at the time outstanding under the
applicable Indenture; provided 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 under the
applicable 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; 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 Debt 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 Debt Securities at the time outstanding
under the applicable Indenture; provided 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 the applicable 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
with respect to any series of Debt Securities issued pursuant to the
applicable Indenture occurs. (Section 6.1)
Each Indenture provides that if an Event of Default described in clauses
(a) or (b) of the immediately preceding paragraph with respect to the Debt
Securities of any series then outstanding thereunder occurs and is
continuing, then, and in each and every such case, except for any series of
Debt 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 Debt Securities of any such affected series then
outstanding under the applicable Indenture (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
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amount (or, if the Debt 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 the applicable Indenture)
of all Debt 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. If an Event of
Default described in clauses (c) or (h) of the immediately preceding
paragraph with respect to the Debt Securities of one or more series then
outstanding under the applicable Indenture occurs and is continuing, then, in
each and every such case, except for any series of Debt 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 Debt Securities of any such series are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof established pursuant to the applicable Indenture) of the Debt
Securities of all such affected series then outstanding under the applicable
Indenture (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 Debt 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 the applicable
Indenture) of all Debt 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. If an
Event of Default described in clauses (d) or (e) of the immediately preceding
paragraph occurs and is continuing, then the principal amount (or, if any
Debt Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
the applicable Indenture) of all the Debt Securities then outstanding under
the applicable Indenture 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. If an
Event of Default described in clauses (f) or (g) of the immediately preceding
paragraph, or in clauses (c) or (h) of the immediately preceding paragraph
with respect to the Debt Securities of all series then outstanding under the
applicable Indenture, occurs and is continuing, then, in each and every such
case, either the Trustee or the Holders of not less than 25% in aggregate
principal amount (or, if the Debt Securities of any outstanding series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to the applicable
Indenture) of all Debt Securities of any series then outstanding under the
applicable Indenture except for any series of Debt 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 Debt
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 the applicable Indenture) of all Debt
Securities of any series then outstanding under the applicable Indenture, 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.
Upon certain conditions such declarations may be rescinded and annulled and
past defaults may be waived by the Holders of a majority in principal of the
then outstanding Debt Securities of all such series that have been
accelerated under the applicable Indenture (voting as a single class), but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon. (Section
6.2) Because the ability of Holders to declare the Debt Securities of any
series due and payable upon an Event of Default under clauses (c), (f), (g)
or (h) of the immediately preceding paragraph depends on the requisite action
by Holders of all affected series of Debt Securities under the applicable
Indenture, if there is more than one series of Debt Securities outstanding,
Holders of a particular series of Debt Securities may be unable to declare
the Debt Securities under the applicable Indenture due and payable upon an
Event of Default described in clauses (c), (f), (g) or (h) of the immediately
preceding paragraph without action by Holders of such other series.
Each Indenture contains a provision under which, subject to the duty of
the Trustee during a default to act with the required standard of care, (i)
the Trustee may rely and shall be 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
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signed or presented by the proper person or persons and 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 the requirements of the applicable Indenture
and 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 the
terms of the applicable Indenture, whenever in the administration of the
trusts of the applicable 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 under the applicable Indenture, such matter
(unless other evidence in respect thereof be specifically prescribed in the
applicable Indenture) 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 the applicable Indenture upon the faith
thereof; (iii) the Trustee may act through its attorneys and agents 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 in the
applicable Indenture shall be sufficiently evidenced by an officers'
certificate (unless other evidence in respect thereof be specifically
prescribed in the applicable Indenture), 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 the
applicable Indenture at the request, order or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity 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 takes or omits to take in accordance with the direction
of the Holders in accordance with the applicable Indenture 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 the applicable 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 under the applicable Indenture
in good faith and in reliance thereon; and (viii) prior to the occurrence of
an Event of Default under the applicable Indenture 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 Debt Securities of all
series affected then outstanding under the applicable Indenture; provided
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 the applicable
Indenture, the Trustee may require reasonable indemnity against such expenses
or liabilities as a condition to proceeding. (Section 7.2)
Subject to such provisions in the applicable Indenture for the
indemnification of the Trustee and certain other limitations, the Holders of
at least a majority in aggregate principal amount (or, if any Debt Securities
are Original Issue Discount Securities, such portion of the principal as may
be specified in the terms thereof established pursuant to the applicable
Indenture) of the outstanding Debt Securities under the applicable Indenture
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 Debt Securities of such series by the applicable Indenture;
provided, that the Trustee may refuse to follow any direction that conflicts
with law or the applicable 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 Debt Securities pursuant to this paragraph. (Section 6.5)
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Subject to various provisions in the applicable Indenture, the Holders of
at least a majority in principal amount (or, if the Debt Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to the applicable
Indenture) of the outstanding Debt Securities under the applicable Indenture
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 Debt
Securities of such series and its consequences, except a Default in the
payment of principal of or interest on any Debt Security as specified in
clauses (a) or (b) of Section 6.1 of the applicable Indenture or in respect
of a covenant or provision of the applicable Indenture which cannot be
modified or amended without the consent of the Holder of each outstanding
Debt Security affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default with respect to the Debt Securities of such
series arising therefrom shall be deemed to have been cured, for every
purpose of the applicable Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right
consequent thereto. (Section 6.4)
Each Indenture provides that no Holder of any Debt Securities of any
series may institute any proceeding, judicial or otherwise, with respect to
the applicable Indenture or the Debt Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy under the
applicable Indenture, unless: (i) such Holder has previously given to the
Trustee written notice of a continuing Event of Default with respect to the
Debt Securities of such series; (ii) the Holders of at least 25% in aggregate
principal amount of outstanding Debt Securities of all such series affected
under the applicable Indenture shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name
as Trustee under the applicable Indenture; (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 (v) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Debt Securities of all such affected
series under the applicable Indenture have not given the Trustee a direction
that is inconsistent with such written request. A Holder may not use the
applicable Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder. (Section 6.6)
Each Indenture contains a covenant that the Company will file with the
Trustee, within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
(Section 4.5)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides with respect to each series of Debt Securities
that the Company may terminate its obligations under the Debt Securities of
any series and the applicable Indenture with respect to Debt Securities of
such series if: (i) all Debt Securities of such series previously
authenticated and delivered, with certain exceptions, have been delivered to
the Trustee for cancellation and the Company has paid all sums payable by it
under the applicable Indenture; or (ii) (a) the Debt 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 Debt
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 Debt Securities of such series to maturity or redemption, as
the case may be, and to pay all other sums payable by it under the applicable
Indenture, 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 in the applicable Indenture relating to the
satisfaction and discharge of the applicable Indenture with respect to the
Debt Securities of such series have been complied with. With respect to the
foregoing clause (i), only the Company's obligations to compensate and
indemnify the Trustee under the applicable Indenture shall survive. With
respect to the foregoing
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clause (ii), only the Company's obligations to execute and deliver Debt
Securities of such series for authentication, to set the terms of the Debt
Securities of such series, to maintain an office or agency in respect of the
Debt Securities of such series, to have moneys held for payment in trust, to
register the transfer or exchange of Debt Securities of such series, to
deliver Debt Securities of such series for replacement or to be canceled, to
compensate and indemnify the Trustee and to appoint a successor trustee, and
its right to recover excess money held by the Trustee shall survive until
such Debt Securities are no longer outstanding. Thereafter, only the
Company's obligations to compensate and indemnify the Trustee, and its right
to recover excess money held by the Trustee shall survive. (Section 8.1)
Each Indenture provides that the Company (i) will be deemed to have paid
and will be discharged from any and all obligations in respect of the Debt
Securities of any series under the applicable Indenture, and the provisions
of the applicable Indenture will, except as noted below, no longer be in
effect with respect to the Debt Securities of such series ("legal
defeasance") and (ii) may, in the case of the Senior Debt Indenture, omit to
comply with any term, provision or condition of the applicable Indenture
described above under "--Negative Pledge" (or in the case of each Indenture
omit to comply with any other specific covenant relating to such series
provided for in a Board Resolution or supplemental indenture which may by its
terms be defeased pursuant to such Indenture), and such omission shall be
deemed not to be an Event of Default under clauses (c) or (h) of the first
paragraph of "--Events of Default" with respect to the outstanding Debt
Securities of a series under the applicable Indenture ("covenant
defeasance"); 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 Debt
Securities of such series, for payment of the principal of and interest on
the Debt 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 Debt 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, the applicable
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 such Debt
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 an
opinion of counsel that (1) the Holders of the Debt Securities of such series
will not recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this provision of the
applicable Indenture 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 (2) the Holders of
the Debt Securities of such series have a valid security interest in the
trust funds subject to no prior liens under the Uniform Commercial Code, 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 in the applicable Indenture relating to the defeasance
contemplated have been complied with. In the case of legal defeasance under
clause (i) above, the opinion of counsel referred to in clause (d)(1) above
may be replaced by a ruling directed to the Trustee received from the
Internal Revenue Service to the same effect. Subsequent to legal defeasance
under clause (i) above, the Company's obligations to execute and deliver Debt
Securities of such series for authentication, to set the terms of the Debt
Securities of such series, to maintain an office or agency in respect of the
Debt Securities of such series, to have moneys held for payment in trust, to
register the transfer or exchange of Debt Securities of such series, to
deliver Debt Securities of such series for replacement or to be canceled, to
compensate and indemnify the Trustee and to appoint a successor trustee, and
its right to recover excess money held by the Trustee shall survive until
such Debt Securities are no longer outstanding. After such Debt Securities
are no longer outstanding, in the case of legal defeasance under clause (i)
above, only the Company's obligations to compensate and indemnify the Trustee
and its right to recover excess money held by the Trustee shall survive.
(Sections 8.2 and 8.3)
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MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee may amend or
supplement the applicable Indenture or the Debt Securities of any series
without notice to or the consent of any Holder: (i) to cure any ambiguity,
defect or inconsistency in the applicable Indenture; provided that such
amendments or supplements shall not materially and adversely affect the
interests of the Holders; (ii) to comply with Article 5 of the applicable
Indenture in connection with a consolidation or merger of the Company or the
sale, conveyance, transfer, lease or other disposal of all or substantially
all of the property and assets of the Company; (iii) to comply with any
requirements of the Commission in connection with the qualification of the
applicable Indenture under the Trust Indenture Act; (iv) to evidence and
provide for the acceptance of appointment under the applicable Indenture with
respect to the Debt Securities of any or all series by a successor Trustee;
(v) to establish the form or forms or terms of Debt Securities of any series
or of the coupons pertaining to such Debt Securities as permitted under the
applicable Indenture; (vi) to provide for uncertificated or unregistered Debt
Securities and to make all appropriate changes for such purpose; or (vii) to
make any change that does not materially and adversely affect the rights of
any Holder. (Section 9.1)
Each Indenture also contains provisions whereby the Company and the
Trustee, subject to certain conditions, without prior notice to any Holders,
may amend the applicable Indenture and the outstanding Debt Securities of any
series with the written consent of the Holders of a majority in principal
amount of the Debt Securities then outstanding under the applicable Indenture
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
Debt Securities under the applicable Indenture 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 applicable
Indenture or the Debt Securities of such series. Notwithstanding the
foregoing provisions, without the consent of each Holder affected thereby, an
amendment or waiver, including a waiver pursuant to Section 6.4 of the
applicable Indenture, 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 Debt 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 or the amount thereof provable in bankruptcy, or change any place of
payment where, or the currency in which, any Debt 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 Debt 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 the applicable Indenture or certain Defaults and their consequences
provided for in the applicable Indenture; (iii) waive a Default in the
payment of principal of or interest on any Debt Security of such Holder; or
(iv) modify any of the provisions of this provision of the applicable
Indenture, except to increase any such percentage or to provide that certain
other provisions of the applicable Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Debt Security
thereunder affected thereby. A supplemental indenture which changes or
eliminates any covenant or other provision of the applicable Indenture which
has expressly been included solely for the benefit of one or more particular
series of Debt Securities, or which modifies the rights of Holders of Debt
Securities of such series with respect to such covenant or provision, shall
be deemed not to affect the rights under the applicable Indenture of the
Holders of Debt Securities of any other series or of the coupons appertaining
to such Debt Securities. It shall not be necessary for the consent of any
Holder under this provision of the applicable Indenture 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 of the applicable
Indenture 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. (Section 9.2)
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GOVERNING LAW
The Indentures and the Debt Securities will be governed by the laws of the
State of New York. (Section 10.8 and Section 11.8)
PLAN OF DISTRIBUTION
Offered Securities may be sold (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers.
Offers to purchase Offered Securities may be solicited by agents
designated by the Company from time to time. Any such agent involved in the
offer or sale of the Offered Securities will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment. Any such agent may be deemed to be an underwriter, as that term
is defined in the Securities Act, of the Offered Securities so offered and
sold.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is
reached, and the names of the specific managing underwriter or underwriters,
as well as any other underwriters, and the terms of the transactions,
including compensation of the underwriters and dealers, if any, will be set
forth in the Prospectus Supplement, which will be used by the underwriters to
make resales of Offered Securities.
If a dealer is utilized in the sale of Offered Securities, the Company
will sell such Offered Securities to the dealer, as principal. The dealer may
then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. The name of the dealer and
the terms of the transactions will be set forth in the Prospectus Supplement
relating thereto.
If DLJSC, a wholly owned subsidiary of the Company, participates in the
distribution of Offered Securities, the offering of the Offered Securities
will be conducted in accordance with Section 2720 of the NASD Conduct Rules.
Offers to purchase Offered Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales will be
described in the Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under agreements which
may be entered into with the Company, to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act,
and any such agents, underwriters or dealers, or their affiliates may be
customers of, engage in transactions with or perform services for the
Company, in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Offered Securities from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Such Contracts will be subject to only those
conditions set forth in the Prospectus Supplement. A commission indicated in
the Prospectus Supplement will be paid to underwriters and agents soliciting
purchases of Offered Securities pursuant to any such Contracts accepted by
the Company.
This Prospectus, together with the Prospectus Supplement, may also be used
by DLJSC in connection with offers and sales of Offered Securities related to
market-making transactions by and through DLJSC, at negotiated prices related
to prevailing market prices at the time of sale or otherwise. DLJSC may act
as principal or agent in such transactions.
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LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Debt Securities and certain other legal matters in connection
with the offering of the Offered Securities will be passed upon by Michael A.
Boyd, Senior Vice President and General Counsel to the Company, and Wilmer,
Cutler & Pickering. Mr. Boyd owns 8,033 shares of Common Stock and 14,433
restricted stock units of the Company and holds options to purchase 39,772
shares of Common Stock. Wilmer, Cutler & Pickering from time to time provides
legal services to the Company and its subsidiaries.
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company as of December 31, 1996 and 1995, and for each of the years in
the three-year period ended December 31, 1996, have been incorporated by
reference in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in
accounting and auditing.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THEREOF. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT SHALL
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Available Information.................... 3
Incorporation of Certain Information by
Reference............................... 3
Use of Proceeds.......................... 4
Ratio of Earnings to Fixed Charges ...... 4
The Company.............................. 5
Description of Capital Stock............. 7
Description of Debt Securities........... 8
Plan of Distribution..................... 20
Legal Matters............................ 21
Experts.................................. 21
</TABLE>
$1,000,000,000
DONALDSON, LUFKIN &
JENRETTE, INC.
DEBT SECURITIES
- -----------------------------------------------------------------------------
PROSPECTUS
- -----------------------------------------------------------------------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
, 1997
<PAGE>
ALTERNATE TO DEBT SECURITIES PROSPECTUS
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 22, 1997
PROSPECTUS
, 1997
$1,000,000,000
DONALDSON, LUFKIN & JENRETTE, INC.
DEBT SECURITIES
Donaldson Lufkin & Jenrette, Inc. (the "Company") may from time to time
offer, together or separately, (i) senior debt securities ("Senior Debt
Securities") or (ii) subordinated debt securities ("Subordinated Debt
Securities") (collectively, the "Debt Securities").
The Debt Securities offered pursuant to this Prospectus may be issued in
one or more series or issuances in U.S. dollars or in one or more foreign
currencies, currency units or composite currencies. The aggregate initial
public offering price of the securities to be offered by this Prospectus and
such other prospectus shall not exceed $1,000,000,000 (or its equivalent in
one or more foreign currencies, currency units or composite currencies).
Specific terms of the securities in respect of which this Prospectus is
being delivered (the "Offered Securities") will be set forth in an
accompanying Prospectus Supplement (a "Prospectus Supplement"). The
Prospectus Supplement will set forth with regard to the particular Offered
Securities, without limitation, the following: the ranking as senior or
subordinated debt securities, the specific designation, aggregate principal
amount, authorized denomination, maturity, rate (which may be fixed or
variable) or method of calculation of interest and dates for payment thereof,
and any exchangeability, conversion, redemption, prepayment or sinking fund
provisions and any listing on a securities exchange. Unless otherwise
indicated in the Prospectus Supplement, the Company does not intend to list
any of the Debt Securities on a national securities exchange.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
This Prospectus has been prepared for use by Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC") in connection with offers and sales of the
Offered Securities which may be made by it from time to time in market-making
transactions at negotiated prices relating to prevailing market prices at the
time of sale. The Company has been advised by DLJSC that it currently intends
to make a market in the Offered Securities; however, it is not obligated to
do so. Any such market-making may be discontinued at any time, and there is
no assurance as to the liquidity of, or trading market for, the Offered
Securities. DLJSC may act as principal or agent in such transactions. See
"Plan of Distribution." This Prospectus may not be used to consummate sales
of Offered Securities unless accompanied by a Prospectus Supplement.
Alt-1
<PAGE>
ALTERNATE TO DEBT SECURITIES PROSPECTUS
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Offered
Securities in any market-making transaction with which this Prospectus may be
delivered.
Alt-2
<PAGE>
ALTERNATE TO DEBT SECURITIES PROSPECTUS
PLAN OF DISTRIBUTION
This Prospectus has been prepared for use by DLJSC in connection with
offers and sales of the Offered Securities in market-making transactions at
negotiated prices related to prevailing market prices at the time of the
sale. DLJSC may act as principal or agent in such transactions. DLJSC has
advised the Company that it currently intends to make a market in the Offered
Securities, but it is not obligated to do so and may discontinue any such
market-making at any time without notice. Accordingly, no assurance can be
given as to the liquidity of, or the trading market for, the Offered
Securities.
Alt-3
<PAGE>
ALTERNATE TO DEBT SECURITIES PROSPECTUS
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, ANY AGENT OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF. NEITHER THIS
PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT SHALL CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO
OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Available Information.................... 3
Incorporation of Certain Information by
Reference............................... 3
Use of Proceeds.......................... 4
Ratio of Earnings to Fixed Charges ...... 4
The Company.............................. 5
Description of Capital Stock............. 7
Description of Debt Securities........... 8
Plan of Distribution..................... 20
Legal Matters............................ 21
Experts.................................. 21
</TABLE>
$1,000,000,000
DONALDSON, LUFKIN &
JENRETTE, INC.
DEBT SECURITIES
- -------------------------------------------------------------------------------
PROSPECTUS
- -------------------------------------------------------------------------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
, 1997
Alt-4
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS AND ANY PRICING
SUPPLEMENT, IN CONNECTION WITH ANY OFFERING CONTEMPLATED HEREBY, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY UNDERWRITER. NEITHER THE
DELIVERY OF THIS PROSPECTUS SUPPLEMENT, THE PROSPECTUS OR ANY PRICING
SUPPLEMENT NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF. THIS PROSPECTUS
SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS AND ANY PRICING SUPPLEMENT SHALL
NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOTES
BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION.
---------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
------
<S> <C>
PROSPECTUS SUPPLEMENT
Incorporation of Certain Information by
Reference ................................ S-2
Description of Notes ...................... S-3
Special Provisions Relating to Foreign
Currency Notes ........................... S-17
Foreign Currency Risks .................... S-21
Certain United States Federal Income Tax
Considerations ........................... S-23
Plan of Distribution ...................... S-32
PROSPECTUS
Available Information ..................... 3
Incorporation of Certain Information by
Reference ................................ 3
Use of Proceeds ........................... 4
Ratio of Earnings to Fixed Charges ....... 4
The Company ............................... 5
Description of Capital Stock .............. 7
Description of Debt Securities ............ 8
Legal Matters ............................. 21
Experts.................................... 21
</TABLE>
$500,000,000
DONALDSON, LUFKIN &
JENRETTE, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
---------
PROSPECTUS SUPPLEMENT
---------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
AUGUST , 1997
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION.
The following table sets forth the fees and expenses payable by the
Company in connection with the issuance and distribution of the securities
other than underwriting discounts and commissions. All of such expenses
except the Securities and Exchange Commission registration fee are estimated:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration
fee................................................$ 303,031
Blue Sky fees and expenses.......................... 30,000
Printing expense.................................... 100,000
Accounting fees and expenses........................ 45,000
Legal fees and expenses............................. 150,000
Rating agency fees.................................. 360,000
Trustee's fees and expenses......................... 49,000
Miscellaneous....................................... 62,969
----------
Total.............................................$1,100,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty,
except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
the unlawful payment of dividends or unlawful stock purchases or redemptions)
or (iv) for any transaction from which a director derived an improper
personal benefit.
Section 145 of the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person in connection with any action, suit
or proceeding brought before or threatened by reason of the fact that the
person was a director, officer, employee or agent of such company, or is or
was serving as such with respect to another entity at the request of such
company. The DGCL also provides that the Company may purchase insurance on
behalf of any such director, officer, employee or agent.
The Company's Certificate of Incorporation provides in effect for the
indemnification by the Company of each director and officer of the Company to
the fullest extent permitted by applicable law.
ITEM 16. EXHIBITS
See index to exhibits at E-1.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the
II-1
<PAGE>
form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraph (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from the registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 15 above or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Donaldson,
Lufkin & Jenrette, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, New York, on
the 21st day of August, 1997.
DONALDSON, LUFKIN & JENRETTE, INC.
By: /s/ Anthony F. Daddino
-------------------------------
Name: Anthony F. Daddino
Title: Executive Vice President
and Chief Financial Officer
The registrant and each person whose signature appears below constitutes
and appoints John S. Chalsty, Anthony F. Daddino and Thomas E. Siegler, and
any agent for service named in this registration statement and each of them,
his, her or its true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him, her or it and in his, her, or
its name, place and stead, in any and all capacities, to sign and file (i)
any and all amendments (including post-effective amendments) to this
registration statement, with all exhibits thereto, and other documents in
connection therewith, and (ii) a registration statement, and any and all
amendments thereto, relating to the offering covered hereby filed pursuant to
Rule 462(b) under the Securities Act of 1933, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act
and thing requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------------- -----------------
<S> <C> <C>
/s/John S. Chalsty Chairman and Chief Executive August 21, 1997
- ------------------------------- Officer and Director
John S. Chalsty
/s/Joe L. Roby President and Chief Operating August 21, 1997
- ------------------------------- Officer and Director
Joe L. Roby
/s/Carl B. Menges Vice Chairman and Director August 21, 1997
- -------------------------------
Carl B. Menges
/s/Anthony F. Daddino Executive Vice President August 21, 1997
- ------------------------------- and Chief Financial Officer
Anthony F. Daddino
Chairman, Financial Services
- ------------------------------- Group and Director
Richard S. Pechter
/s/Hamilton E. James Chairman, Banking Group and August 21, 1997
- ------------------------------- Director
Hamilton E. James
/s/Theodore P. Shen Chairman, Capital Markets Group August 21, 1997
- ------------------------------ and Director
Theodore P. Shen
II-3
<PAGE>
SIGNATURE TITLE DATE
/s/Michael M. Bendik Senior Vice President and August 21, 1997
- ------------------------------- Chief Accounting Officer
Michael M. Bendik
Director
- -------------------------------
Claude Bebear
/s/Henri de Castries Director August 21, 1997
- -------------------------------
Henri de Castries
Director
- -------------------------------
Denis Duverne
/s/Louis Harris Director August 21, 1997
- -------------------------------
Louis Harris
Director
- -------------------------------
Henri Baron Hottinguer
/s/W. Edwin Jarmain Director August 21, 1997
- -------------------------------
W. Edwin Jarmain
/s/Francis Jungers Director August 21, 1997
- -------------------------------
Francis Jungers
/s/Joseph J. Melone Director August 21, 1997
- -------------------------------
Joseph J. Melone
/s/W.J. Sanders III Director August 21, 1997
- -------------------------------
W.J. Sanders III
Director
- -------------------------------
Stanley B. Tulin
Director
- -------------------------------
John C. West
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
- ----------- --------------------------------------------------------------------- ----------------
<S> <C> <C>
1.1 Form of Underwriting Agreement relating to the Debt Securities* ......
1.2 Form of Distribution Agreement relating to the Debt Securities .......
4.1 Form of Senior Debt Indenture between the Company and the Senior Debt
Securities Trustee....................................................
4.2 Form of Senior Debt Securities........................................
4.3 Form of Subordinated Debt Indenture between the Company and the
Subordinated Debt Securities Trustee..................................
4.4 Form of Subordinated Debt Securities..................................
5.1 Opinion of Wilmer, Cutler & Pickering.................................
8.1 Tax opinion of Wilmer, Cutler & Pickering*............................
12.1 Computation of ratio of earnings to fixed charges.....................
23.1 Consent of Wilmer, Cutler & Pickering (included in Exhibit 5.1) ......
23.3 Consent of KPMG Peat Marwick LLP......................................
24.1 Powers of Attorney for the Company (see signature page)...............
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of the Senior Debt Securities Trustee, under the Senior
Indenture.............................................................
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of the Subordinated Debt Securities Trustee, under the
Subordinated Indenture*...............................................
</TABLE>
- ------------
* To be filed by amendment or as an exhibit to a document incorporated by
reference herein in connection with an offering of the Offered
Securities.
E-1
<PAGE>
DONALDSON, LUFKIN & JENRETTE, INC.
$500,000,000
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
FORM OF
DISTRIBUTION AGREEMENT
August ___, 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
<PAGE>
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 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 August
__, 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 Company is so
permitted and (B) to accept (but not solicit) offers to purchase Notes from
time to
2
<PAGE>
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 agents or dealers.
The Company has prepared and filed a registration statement on Form
S-3 (No. 333- _______) 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 Registration Statement or the
Basic Prospectus is amended or supplemented, as follows (it being
3
<PAGE>
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
4
<PAGE>
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, 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 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.
5
<PAGE>
(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 or rulings or court decrees
applicable to the Company any of its Subsidiaries or their
respective properties.
6
<PAGE>
(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 liabilities to
third parties). On the basis of such review, the Company
has
7
<PAGE>
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.
(t) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940,
as amended.
8
<PAGE>
(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).
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
9
<PAGE>
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:
<TABLE>
<CAPTION>
Commission (percentage of aggregate
Maturities of Notes Sold principal amount)
------------------------- -------------------------------------
<S> <C>
From 9 months to less than 1 year............................................ .125%
From 1 year to less than 18 months........................................... .150%
From 18 months to less than 2 years.......................................... .200%
From 2 years to less than 3 years............................................ .250%
From 3 years to less than 4 years............................................ .350%
From 4 years to less than 5 years............................................ .450%
From 5 years to less than 6 years............................................ .500%
From 6 years to less than 7 years............................................ .550%
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
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%
</TABLE>
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 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 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,
11
<PAGE>
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
default 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.
(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 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
12
<PAGE>
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
Prospectus, no Agent shall be obligated to solicit offers
to purchase Notes so long as it is not reasonably satisfied
with such document.
13
<PAGE>
(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 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
14
<PAGE>
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.
(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
15
<PAGE>
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 such Agent,
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 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
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<PAGE>
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 [__________, 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 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
17
<PAGE>
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;
(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
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<PAGE>
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
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 Agents, 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
Agents materially and adversely affects, or will
materially and adversely affect, the business or
operations of the Company or any Subsidiary, (D)
the 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 Agents
has a material adverse effect on the financial
markets in the United States.
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<PAGE>
(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 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
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
20
<PAGE>
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 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
21
<PAGE>
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 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
22
<PAGE>
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 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;
23
<PAGE>
(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.
(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
24
<PAGE>
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.
(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.
25
<PAGE>
(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 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 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 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 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
26
<PAGE>
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 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.
27
<PAGE>
(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. 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
28
<PAGE>
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 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.
29
<PAGE>
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 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;
30
<PAGE>
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.
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.
31
<PAGE>
Very truly yours,
DONALDSON, LUFKIN & JENRETTE, INC.
By:____________________________________
Name:
Title:
Accepted in New York, New York, as of the date first above written:
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
By:____________________
Name:
Title:
BANCAMERICA SECURITIES, INC.
By:____________________
Name:
Title:
BANQUE PARIBAS
By:____________________
Name:
Title:
32
<PAGE>
CHASE SECURITIES INC.
By:____________________
Name:
Title:
CITICORP SECURITIES, INC.
By:____________________
Name:
Title:
CREDIT LYONNAIS SECURITIES (USA) INC.
By:_______________________
Name:
Title:
DEUTSCHE MORGAN GRENFELL
By:____________________
Name:
Title:
FIRST CHICAGO CAPITAL MARKETS INC.
By:____________________
Name:
Title:
33
<PAGE>
NATIONSBANC CAPITAL MARKETS, INC.
By:____________________
Name:
Title:
SOCIETE GENERALE SECURITIES CORPORATION
By:____________________
Name:
Title:
UBS SECURITIES LLC
By:____________________
Name:
Title:
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 August __, 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 August ___, 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 August __,
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
<PAGE>
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 or December 2, 1988, 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.
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
B-2
<PAGE>
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 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
B-3
<PAGE>
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). 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.
B-4
<PAGE>
$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 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
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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.
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
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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
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
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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
to such Participants of the principal of and
interest on the Book-Entry Notes.
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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.
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
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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).
14. Any other applicable Terms.
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<PAGE>
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.
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
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<PAGE>
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
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.
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<PAGE>
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 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
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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 holders of Notes
shall be made only to the extent that funds are
provided to the Bank for such purpose.
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<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,
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<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 Certificated Note issued between a
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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 list
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<PAGE>
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-18
<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-19
<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-20
<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-21
<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-22
<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>
EXHIBIT 4.1
- ------------------------------------------------------------------------------
DONALDSON, LUFKIN & JENRETTE, INC.
as the Company
and
----------------------------------------------------------
THE CHASE MANHATTAN BANK
as Trustee
----------------------------------------------------------
Form of
Senior Debt Indenture
Dated as of [ ], 1997
- ------------------------------------------------------------------------------
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
Reconciliation and Tie Between
Trust Indenture Act of 1939 and
indenture Provisions*/
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
<S> <C> <C>
ss.310 (a) (1) .................................................................. 7.10
(a) (2) .................................................................. 7.10
(a) (3) .................................................................. Not Applicable
(a) (4) .................................................................. Not Applicable
(b) .................................................................. 7.3
11.1
ss.311 (a) .................................................................. 7.3
(b) .................................................................. 7.3
(b)(2) .................................................................. 7.3
ss.312 (a) .................................................................. 11.1
(b) .................................................................. 11.1
(c) .................................................................. 11.1
ss.313 (a) .................................................................. 7.6
(b) .................................................................. 7.6
(c) .................................................................. 7.6
(d) .................................................................. 7.6
ss.314 (a) .................................................................. 4.4
4.5
(b) .................................................................. Not Applicable
(c)(1) .................................................................. 11.3
11.4
(c)(2) .................................................................. 11.3
11.4
(c)(3) .................................................................. Not Applicable
(d) .................................................................. Not Applicable
(e) .................................................................. 11.4
ss.315 (a) .................................................................. 7.1
7.2
</TABLE>
- --------
1/ This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
<S> <C> <C>
(b) .................................................................. 7.5
(c) .................................................................. 7.2
(d) .................................................................. 7.2
(d)(1) .................................................................. 7.1
(d)(2) .................................................................. 7.2
(d)(3) .................................................................. 7.2
(e) .................................................................. 6.12
ss.316 (a) .................................................................. 1.1
(a)(1)(A) .................................................................. 6.2
6.5
(a)(1)(B) .................................................................. 6.4
(a)(2) .................................................................. Not Applicable
(b) .................................................................. 6.7
ss.317 (a)(1) .................................................................. 6.3
6.8
(a)(2) .................................................................. 6.9
(b) .................................................................. 2.6
ss.318 (a) .................................................................. 11.1
</TABLE>
<PAGE>
TABLE OF CONTENTS*
Page
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........................11
SECTION 2.4 Denomination and Date of Securities; Payments of Interest...14
SECTION 2.5 Agents Generally............................................15
SECTION 2.6 Paying Agent to Hold Money in Trust.........................15
SECTION 2.7 Transfer and Exchange.......................................16
SECTION 2.8 Replacement Securities......................................20
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..........................................24
SECTION 2.14 Series May Include Tranches.................................24
SECTION 2.15 Computation of Interest.....................................24
SECTION 2.16 Currency and Manner of Payment in Respect of Securities.....24
- --------
*Note: The Table of Contents shall not for any purposes be deemed to be a part
of the Indenture.
i
<PAGE>
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article....................................30
SECTION 3.2 Notice of Redemption; Partial Redemptions...................30
SECTION 3.3 Payment of Securities Called for Redemption.................32
SECTION 3.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption....................................33
SECTION 3.5 Mandatory and Optional Sinking Funds........................33
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities.......................................36
SECTION 4.2 Maintenance of Office or Agency.............................37
SECTION 4.3 Negative Pledge.............................................37
SECTION 4.4 Certificate to Trustee......................................38
SECTION 4.5 Reports by the Company......................................38
SECTION 4.6 Calculation of Original Issue Discount......................38
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc.................................39
SECTION 5.2 Successor Substituted.......................................39
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default...........................................40
SECTION 6.2 Acceleration................................................41
SECTION 6.3 Other Remedies..............................................43
SECTION 6.4 Waiver of Past Defaults.....................................44
SECTION 6.5 Control by Majority.........................................44
SECTION 6.6 Limitation on Suits.........................................44
SECTION 6.7 Rights of Holders to Receive Payment........................45
SECTION 6.8 Collection Suit by Trustee..................................45
SECTION 6.9 Trustee May File Proofs of Claim............................45
SECTION 6.10 Application of Proceeds.....................................46
SECTION 6.11 Restoration of Rights and Remedies..........................47
SECTION 6.12 Undertaking for Costs.......................................47
SECTION 6.13 Rights and Remedies Cumulative..............................47
ii
<PAGE>
SECTION 6.14 Delay or Omission Not Waiver................................47
ARTICLE 7
TRUSTEE
SECTION 7.1 General.....................................................48
SECTION 7.2 Certain Rights of Trustee...................................48
SECTION 7.3 Individual Rights of Trustee................................49
SECTION 7.4 Trustee's Disclaimer........................................50
SECTION 7.5 Notice of Default...........................................50
SECTION 7.6 Reports by Trustee to Holders...............................51
SECTION 7.7 Compensation and Indemnity..................................51
SECTION 7.8 Replacement of Trustee......................................52
SECTION 7.9 Successor Trustee by Merger, Etc............................53
SECTION 7.10 Eligibility.................................................53
SECTION 7.11 Money Held in Trust.........................................53
SECTION 7.12 Right of Trustee in Capacity of Registrar or Paying Agent...53
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment.......................53
SECTION 8.2 Defeasance..................................................54
SECTION 8.3 Covenant Defeasance.........................................55
SECTION 8.4 Application of Trust Money..................................56
SECTION 8.5 Repayment to Company........................................57
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVER
SECTION 9.1 Without Consent of Holders..................................57
SECTION 9.2 With Consent of Holders.....................................58
SECTION 9.3 Revocation and Effect of Consent............................59
SECTION 9.4 Notation on or Exchange of Securities.......................60
SECTION 9.5 Trustee to Sign Amendments, Etc.............................60
SECTION 9.6 Conformity with Trust Indenture Act.........................60
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939.................................60
SECTION 10.2 Notices.....................................................60
iii
<PAGE>
SECTION 10.3 Certificate and Opinion as to Conditions Precedent..........62
SECTION 10.4 Statements Required in Certificate or Opinion...............62
SECTION 10.5 Evidence of Ownership.......................................62
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar.................63
SECTION 10.7 Payment Date Other Than a Business Day......................63
SECTION 10.8 Governing Law...............................................64
SECTION 10.9 No Adverse Interpretation of Other Agreements...............64
SECTION 10.10 Successors..................................................64
SECTION 10.11 Duplicate Originals.........................................64
SECTION 10.12 Separability................................................64
SECTION 10.13 Table of Contents, Headings, Etc............................64
SECTION 10.14 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability....................64
SECTION 10.15 Judgment Currency...........................................64
SECTION 10.16 Moneys of Different Currencies To Be Segregated.............65
SECTION 10.17 Language of Notices, etc....................................65
SECTION 10.18 Changes in Exhibits.........................................65
SIGNATURES..................................................................66
EXHIBIT A Forms of Certification To Be Given by Euroclear and Cedel..68
iv
<PAGE>
INDENTURE, dated as of August ____, 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.
<PAGE>
"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.
2
<PAGE>
"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.
3
<PAGE>
"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 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.
4
<PAGE>
"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.
"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).
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"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 (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
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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
Required Currency 10.15
Security Register 4.2
self-liquidating paper 7.3
sinking fund payment date 3.5
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Term Section
---- -------
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;
(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;
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(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.
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
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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 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.
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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;
(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;
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(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 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
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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;
(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,
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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.
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
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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.
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
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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 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
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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 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
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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.
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
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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.
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
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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 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.
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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 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
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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 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.
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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.
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
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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.
(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
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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 (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
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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 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,
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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 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
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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 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
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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).
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.
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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 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
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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 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
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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 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.
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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 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.
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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.
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
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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 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
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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
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
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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).
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.
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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;
(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
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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 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
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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 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
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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 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
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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
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.
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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.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust Indenture Act
Sections 315(a) through (d):
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(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 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
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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 Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
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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 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
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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 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
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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 combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
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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.
(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
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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 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
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(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 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
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(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:
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(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.
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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
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its terms, subject to customary exceptions. Subject to the preceding sentence,
the Trustee 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.
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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:
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(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 Register for such series as the absolute owner of
such Registered Security (whether or not such
61
<PAGE>
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.
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
63
<PAGE>
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
By:
- --------------------------- ----------------------------
Name:
Title:
(SEAL) THE CHASE MANHATTAN BANK,
Attest: as Trustee
By:
- --------------------------- ----------------------------
Name:
Title:
65
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of 1997, before me
personally came , to me known, who, being by me duly
sworn, did depose and say that he is 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.
-----------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of 1997, before me
personally came , to me known, who, being by me duly
sworn, did depose and say that he is 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.
-----------------------
Notary Public
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
67
<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:
68
<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.
69
<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
---------------------------------
70
<PAGE>
EXHIBIT 4.2
[FORM OF SENIOR DEBT SECURITY]
CUSIP:
No. $
[To be included on Registered Global Securities only: Unless and until it is
exchanged in whole or in part for [Notes] in definitive registered form, this
[Note] may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
Due ___
DONALDSON, LUFKIN & JENRETTE, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________, or registered assigns, at the office or agency of the Company in
New York, New York, the principal sum of ___________ [Dollars] on
_______________, [in the coin or currency of the United States,] and to pay
interest, [semi-annually on ______ and ______ of each year,] commencing
__________, on said principal sum at said office or agency, [in like coin or
currency,] at the rate per annum specified in the title of this [Note] , from
the _____ or the ______, as the case may be, next preceding the date of this
[Note] to which interest has been paid or duly provided for, unless the date
hereof is a date to which interest has been paid or duly provided for, in
which case from the date of this [Note] , or unless no interest has been paid
or duly provided for on these [Notes] , in which case from __________, until
payment of said principal sum has been made or duly provided for; provided,
that payment of interest may be made at the option of the Company by check
mailed to the address of the person entitled thereto as such address shall
appear on the Security register or by wire transfer as provided in the
Indenture. Notwithstanding the foregoing, if the date hereof is after the __th
day of _____ or ______ , as the case may be, and before the following _____ or
______, this [Note] shall bear interest from such ______ or ______; provided,
that if the Company shall default in the payment of interest due on such _____
or _____, then this [Note]
<PAGE>
shall bear interest from the next preceding _____ or _____, to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for on these [Notes] , from ________. The interest so payable on any
____ or ____ will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this
[Note] is registered at the close of business on the ____ or ______, as the
case may be, next preceding such _____ or ______, whether or not such day is a
Business Day.
Reference is made to the further provisions of this [Note] set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This [Note] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, DONALDSON, LUFKIN & JENRETTE, INC. has caused
this instrument to be signed manually or by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed
hereunto or imprinted hereon.
(SEAL) DONALDSON, LUFKIN & JENRETTE, INC.
Attest: By:
-----------------------------
- ----------------------
2
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: [NAME OF TRUSTEE],
as Trustee
By:
--------------------------------
Authorized Signatory
3
<PAGE>
REVERSE OF [NOTE]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
Due ____
This [Note]is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called
the "Securities") of the series hereinafter specified, all issued or to be
issued under and pursuant to an indenture dated as of [_____________] (herein
called the "Indenture"), duly executed and delivered by the Company to
[____________], as Trustee (herein called the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and may otherwise vary
as in the Indenture provided. This [Note] is one of a series designated as the
___% [Notes] Due ___ of the Company, limited in aggregate principal amount to
$________.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue Principal and, to the
extent lawful, on overdue installments of interest at the rate per annum borne
by this [Note] . If a payment date is not a Business Day as defined in the
Indenture at a place of payment, payment may be made at that place on the next
succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
In case an Event of Default with respect to the ___% [Notes] Due
____, 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, the Company and the Trustee may amend the 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
4
<PAGE>
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 Securities of such series; provided
that, without the consent of each Holder of the Securities 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 Security, 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 Security 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 Security 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 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 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 Security of such Holder; or (iv)
modify any of the provisions of the Indenture governing supplemental
indentures with the consent of Securityholders 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
Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable) of the 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 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 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 the Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
5
<PAGE>
The Indenture provides that 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 the Indenture, subject to certain exceptions, with respect
to sections of the Indenture concerning the execution, authentication and
terms of the Securities, redemption of the Securities, Events of Default of
the Securities, defeasance of the Securities and amendment of the Indenture,
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 a board resolution or a supplemental
indenture establishing such series or tranche.
No reference herein to the Indenture and no provision of this [Note]
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the Principal of and any premium and
interest on this [Note] in the manner, at the place, at the respective times,
at the rate and in the coin or currency herein prescribed.
The [Notes] are issuable initially only in registered form without
coupons in denominations of [$1,000] or any integral multiple thereof at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
[This [Note] will not be redeemable at the option of the Company
prior to maturity.] [This [Note] is redeemable prior to maturity ...]
Upon due presentment for registration of transfer of this [Note] at
the office or agency of the Company in the Borough of Manhattan, The City of
New York, 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.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
[Note] (whether or not this [Note] shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of,
6
<PAGE>
or on account of, the Principal hereof and, subject to the provisions hereof,
interest hereon, 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.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any indenture supplemental thereto or in any
[Note] , 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 hereof and as
part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts of
laws principles thereof) shall govern this [Note] .
7
<PAGE>
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 Issuer, with full
- ----------------------------------------------------------------
power of substitution in the premises.
Dated:
---------------------
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within [Note] in every
particular without alteration or enlargement or any change
whatsoever.
Signature guarantee:
-----------------------------
8
<PAGE>
EXHIBIT 4.3
- ------------------------------------------------------------------------------
DONALDSON, LUFKIN & JENRETTE, INC.
as the Company
and
[___________________________]
as Trustee
-------------------------------------
Form of
Subordinated Debt Indenture
Dated as of [ ], 1997
-------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
Reconciliation and Tie Between
Trust Indenture Act of 1939 and
indenture Provisions*/
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
<S> <C> <C>
ss.310 (a) (1) .................................................................. 7.10
(a) (2) .................................................................. 7.10
(a) (3) .................................................................. Not Applicable
(a) (4) .................................................................. Not Applicable
(b) .................................................................. 7.3
11.1
ss.311 (a) .................................................................. 7.3
(b) .................................................................. 7.3
(b)(2) .................................................................. 7.3
ss.312 (a) .................................................................. 11.1
(b) .................................................................. 11.1
(c) .................................................................. 11.1
ss.313 (a) .................................................................. 7.6
(b) .................................................................. 7.6
(c) .................................................................. 7.6
(d) .................................................................. 7.6
ss.314 (a) .................................................................. 4.4
4.5
(b) .................................................................. Not Applicable
(c)(1) .................................................................. 11.3
11.4
(c)(2) .................................................................. 11.3
11.4
(c)(3) .................................................................. Not Applicable
(d) .................................................................. Not Applicable
(e) .................................................................. 11.4
ss.315 (a) .................................................................. 7.1
7.2
</TABLE>
- --------
1/ This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
<S> <C> <C>
(b) .................................................................. 7.5
(c) .................................................................. 7.2
(d) .................................................................. 7.2
(d)(1) .................................................................. 7.1
(d)(2) .................................................................. 7.2
(d)(3) .................................................................. 7.2
(e) .................................................................. 6.12
ss.316 (a) .................................................................. 1.1
(a)(1)(A) .................................................................. 6.2
6.5
(a)(1)(B) .................................................................. 6.4
(a)(2) .................................................................. Not Applicable
(b) .................................................................. 6.7
ss.317 (a)(1) .................................................................. 6.3
6.8
(a)(2) .................................................................. 6.9
(b) .................................................................. 2.6
ss.318 (a) .................................................................. 11.1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS*
Page
----
<S> <C>
RECITALS OF THE COMPANY................................................................1
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE.............................................1
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.................................................9
ARTICLE 2
THE SECURITIES.........................................................................9
SECTION 2.1 Form and Dating.......................................................9
SECTION 2.2 Execution and Authentication..........................................9
SECTION 2.3 Amount Unlimited; Issuable in Series.................................11
SECTION 2.4 Denomination and Date of Securities; Payments of Interest............14
SECTION 2.5 Agents Generally.....................................................15
SECTION 2.6 Paying Agent to Hold Money in Trust..................................15
SECTION 2.7 Transfer and Exchange................................................16
SECTION 2.8 Replacement Securities...............................................20
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...................................................24
SECTION 2.14 Series May Include Tranches..........................................24
SECTION 2.15 Computation of Interest..............................................24
SECTION 2.16 Currency and Manner of Payment in Respect of Securities..............24
ARTICLE 3
REDEMPTION............................................................................30
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..........................32
SECTION 3.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption.......................................................33
SECTION 3.5 Mandatory and Optional Sinking Funds.................................33
ARTICLE 4
COVENANTS.............................................................................35
SECTION 4.1 Payment of Securities................................................35
SECTION 4.2 Maintenance of Office or Agency......................................36
SECTION 4.3 [Reserved]...........................................................
SECTION 4.4 Certificate to Trustee...............................................37
SECTION 4.5 Reports by the Company...............................................38
SECTION 4.6 Calculation of Original Issue Discount...............................38
ARTICLE 5
SUCCESSOR CORPORATION..................................................................38
SECTION 5.1 When Company May Merge, Etc..........................................38
SECTION 5.2 Successor Substituted................................................39
ARTICLE 6
DEFAULT AND REMEDIES..................................................................39
SECTION 6.1 Events of Default....................................................39
SECTION 6.2 Acceleration.........................................................41
SECTION 6.3 Other Remedies.......................................................43
SECTION 6.4 Waiver of Past Defaults..............................................43
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..............................................45
SECTION 6.11 Restoration of Rights and Remedies...................................46
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...............................................................................47
ii
<PAGE>
SECTION 7.1 General..............................................................47
SECTION 7.2 Certain Rights of Trustee............................................47
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...........................................50
SECTION 7.8 Replacement of Trustee...............................................50
SECTION 7.9 Successor Trustee by Merger, Etc.....................................52
SECTION 7.10 Eligibility..........................................................52
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................................................................52
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...................................................56
SECTION 9.1 Without Consent of Holders...........................................56
SECTION 9.2 With Consent of Holders..............................................57
SECTION 9.3 Revocation and Effect of Consent.....................................58
SECTION 9.4 Notation on or Exchange of Securities................................59
SECTION 9.5 Trustee to Sign Amendments, Etc......................................59
SECTION 9.6 Conformity with Trust Indenture Act..................................59
ARTICLE 10
SUBORDINATION.........................................................................59
SECTION 10.1 Securities Subordinated to Senior Indebtedness.......................59
SECTION 10.2 No Payment on Securities in Certain Circumstances....................60
SECTION 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization
of Company...........................................................61
SECTION 10.4 Securityholders to be Subrogated to Rights of Holders of
Senior Indebtedness..................................................62
iii
<PAGE>
SECTION 10.5 Obligations of the Company Unconditional.............................63
SECTION 10.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice....................................................64
SECTION 10.7 Application by Trustee of Assets Deposited with It...................64
SECTION 10.8 Subordination Rights Not Impaired by Acts or Omissions of the
Company, the Trustee or Holders of Senior Indebtedness...............64
SECTION 10.9 Securityholders Authorize Trustee to Effectuate Subordination
of Securities........................................................65
SECTION 10.10 Right of Trustee to Hold Senior Indebtedness.........................65
SECTION 10.11 Article Ten Not to Prevent Events of Default.........................66
SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.......66
ARTICLE 11
MISCELLANEOUS.........................................................................66
SECTION 11.1 Trust Indenture Act of 1939..........................................66
SECTION 11.2 Notices..............................................................66
SECTION 11.3 Certificate and Opinion as to Conditions Precedent...................67
SECTION 11.4 Statements Required in Certificate or Opinion........................68
SECTION 11.5 Evidence of Ownership................................................68
SECTION 11.6 Rules by Trustee, Paying Agent or Registrar..........................69
SECTION 11.7 Payment Date Other Than a Business Day...............................69
SECTION 11.8 Governing Law........................................................69
SECTION 11.9 No Adverse Interpretation of Other Agreements........................69
SECTION 11.10 Successors...........................................................69
SECTION 11.11 Duplicate Originals..................................................69
SECTION 11.12 Separability.........................................................69
SECTION 11.13 Table of Contents, Headings, Etc.....................................70
SECTION 11.14 Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability.....................................70
SECTION 11.15 Judgment Currency....................................................70
SECTION 11.16 Moneys of Different Currencies To Be Segregated......................70
SECTION 11.17 Language of Notices, etc.............................................71
SECTION 11.18 Changes in Exhibits..................................................71
SIGNATURES............................................................................72
EXHIBIT A Forms of Certification To Be Given by Euroclear and Cedel............68
</TABLE>
iv
<PAGE>
INDENTURE, dated as of _______ ____, 1997 between Donaldson, Lufkin &
Jenrette, Inc., a Delaware corporation, as the Company, [____________________],
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.
<PAGE>
"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 [______________________________].
2
<PAGE>
"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 11.3.
3
<PAGE>
"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 11.4 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 11.4.
"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
11.4. Each such opinion shall
4
<PAGE>
comply with Section 314 of the Trust Indenture Act and include the
statements provided in Section 11.4, 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.
5
<PAGE>
"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.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on (a) all indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, (i) for money borrowed by the
Company, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company, (iii) in
respect of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the paymentof
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refunding of, and amendments, modifications and supplements to,
any such indebtedness. As used in the preceding sentence, the term "purchase
money indebtedness" means indebtedness evidenced by a note, debenture, bond or
other instrument (whether or not secured by any lien or other security
interest) issued or assumed as all or a part of the consideration for the
acquisition of property, whether by purchase, merger, consolidation or
otherwise, unless by its terms such indebtedness is subordinated to other
indebtedness of the Company. Notwithstanding anything to the contrary in this
Indenture or the Securities, Senior Indebtedness shall not include, (i) any
indebtedness of the Company which, by its terms or the terms of the instrument
creating or evidencing it, is subordinate in right of payment to or pari passu
with the Securities or (ii) any indebtedness of the Company to a Subsidiary of
the Company.
"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.
6
<PAGE>
"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 (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:
7
<PAGE>
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 11.15
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
Required Currency 11.15
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.
8
<PAGE>
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;
(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
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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.
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
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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
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 junior in right of payment, to the extent provided herein,
to all Senior Indebtedness. 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
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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;
(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
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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 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;
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(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 uponpresentation 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;
(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.
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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 interestdue 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.
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 noticeto 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 Agentuntil 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
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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.
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
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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 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 Holderof 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
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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 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 officeor 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 DefaultedInterest, 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 theauthentication 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
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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.
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.
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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.
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.
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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 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,
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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 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
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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 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
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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.
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:
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(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.
(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
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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 (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
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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 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.
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(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 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
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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.
"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
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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).
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
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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 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
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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 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.
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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 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
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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 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 nameand 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
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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.
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
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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
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 11.2.
The Company shall cause the Registrar to keep a register of the
Registered Securities and of their registration, transfer and exchange (the
"Security Register").
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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 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
[Reserved]
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 11.4)
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
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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).
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
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(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.
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
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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;
(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 eventbe 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
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(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 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, andin 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 affectedseries 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
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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 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 IssueDiscount 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.
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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 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 andplace 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;
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(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
(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,
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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 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
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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
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.
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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.
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 11.4. 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;
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(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 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
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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 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
adequacyof 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
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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 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
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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 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
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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 withthe 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 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
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(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.
(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
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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 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
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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 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
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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 atleast 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.
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
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(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:
(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
OriginalIssue 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
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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.
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.
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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 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
SUBORDINATION
SECTION 10.1 Securities Subordinated to Senior Indebtedness. The
Company, for itself and its successors, and each Holder, by his or her
acceptance of Securities, agrees that the payment of the Principal of if any,
and interest on the Securities is subordinated, to the extent and in the
manner provided in this Article Ten, to the right of payment in full to all
present and future Senior Indebtedness, and that these subordination
provisions are for the benefit of the holders of Senior Indebtedness.
The provisions of this Article Ten are for the benefit of the holders
of the Senior Indebtedness from time to time (and their successors and
assigns) and shall be enforceable directly by them and their respective
Representatives directly against the Company, the Trustee and the Holders (and
their successors and assigns). The provisions of this Article Ten shall be a
continuing agreement and shall be irrevocable and shall remain in full force
and effect until payment in the full of the Senior Indebtedness in cash or
cash equivalents, and shall constitute a continuing and irrevocable offer to
all Persons who become holders of, or continue to hold, Senior Indebtedness
(whether such Senior Indebtedness was created or acquired before or after
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the issuance of the Securities), each of which holders shall be deemed for the
purposes hereof to have acquired Senior Indebtedness in reliance upon the
provisions of this Article Ten. The provision of this Article Ten shall
survive the commencement of any reorganization or other proceedings with
respect to the Company or any other Person and the discharge of any claim in
connection with such reorganization or other proceedings, including, without
limitation, the discharge of any Senior Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are hereby authorized to demand specific performance of the
provisions of this Article Ten at any time when the Company or any Holder
shall have failed to comply with any provision of this Article Ten applicable
to it, and the Company and each Holder hereby irrevocably waives any defense
based on the adequacy of a remedy at law that might be asserted as a bar to
the remedy of specific performance hereof in any action brought therefor by
the holders of the Senior Indebtedness and their respective representatives.
SECTION 10.2 No Payment on Securities in Certain Circumstances. (a)
No payment shall be made by or on behalf of the Company on account of any
obligation or, to the extent the subordination thereof is permitted by
applicable law, claim in respect of the Securities, including the Principal
of, or interest on the Securities, or to redeem (or make a deposit in
redemption of), defease (other than payments made by the Trustee pursuant to
Article Eight with respect to a defeasance permitted by this Indenture,
including the subordination provisions herein) or acquire any of the
Securities for cash, property or securities, (i) upon the maturity of the
Designated Senior Indebtedness or any other Senior Indebtedness with an
aggregate principal amount in excess of $1 million by lapse of time,
acceleration or otherwise, unless and until all Principal of, and interest on
such Senior Indebtedness and all other obligations in respect thereof shall
first be paid in full in cash or cash equivalents or such payment is duly
provided for, or unless and until any such maturity by acceleration has been
rescinded or waived or (ii) in the event of default in payment of any
Principal of, or interest on or any other amount payable in respect of the
Designated Senior Indebtedness or any other Senior Indebtedness with an
aggregate principal amount in excess of $1 million when it becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise, unless and until such payment default has been cured
or waived or has otherwise ceased to exist.
(b) Upon the happening of a default (any event that, after notice or
passage of time would be an event of default) or an event of default (any
event that permits the holders of Senior Indebtedness or their representative
or representatives immediately to accelerate its maturity) with respect to any
Senior Indebtedness, other than a default in payment of the Principal of, or
interest on such Senior Indebtedness, upon written notice of such default or
event of default given to the Company and the Trustee by the holders of a
majority of the principal amount outstanding of such Designated Senior
Indebtedness or their representative or at such time as there is no Designated
Senior Indebtedness by the holders of a majority of the principal amount
outstandingof all Senior Indebtedness or their representative or
representatives, or if such default or event of default results from the
acceleration of the Securities, immediately upon such
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acceleration, then, unless and until such default or event of default
has been cured or waived or otherwise has ceased to exist, no payment may be
made by or on behalf of the Company with respect to any obligation or claim in
respect of the Securities, including the Principal of, or interest on the
Securities or to redeem (or make a deposit in redemption of), defease or
acquire any of the Securities for cash, property or securities.
Notwithstanding the foregoing, unless the Senior Indebtedness in respect of
which such default or event of default exists has been declared due and
payable in its entirety within 180 days after the date written notice of such
default or event of default is delivered as set forth above or the date of
such acceleration, as the case may be (the "Payment Blockage Period"), and
such declaration or acceleration has not been rescinded, the Company shall be
required then to pay all sums not paid to the Holders of the Securities during
the Payment Blockage Period due to the foregoing prohibitions and to resume
all other payments as and when due on the Securities. Any number of such
notices may be given; provided, however, that (i) during any 360 consecutive
days, only one Payment Blockage Period shall commence and (ii) any such
default or event of default that existed upon the commencement of a Payment
Blockage Period may not be the basis for the commencement of any other Payment
Blockage Period, unless such default or event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing provisions of
this Section 10.2, any payment or distribution of assets of the Company from
any source whether in cash, property or securities, shall be received by the
Trustee or the Holders on account of any obligation or claim in respect of the
Securities at a time when such payment or distribution is prohibited by the
foregoing provisions, such payment or distribution shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders
of the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full
in cash or cash equivalents of all such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
The Company shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any
acceleration under any Senior Indebtedness or under any agreement pursuant to
which Senior Indebtedness may have been issued.
SECTION 10.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company. Upon
any distribution of assets of the Company upon any dissolution, winding up,
total or partial liquidation or reorganization or readjustment of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors, or any
other marshaling of the assets and liabilities of the Company or otherwise:
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(a)the holders of all Senior Indebtedness would first be entitled to
receive payment in full in cash or cash equivalents (or have such payment duly
provided for) of the Principal, and interest payable in respect thereof before
the Holders would be entitled to receive any payment on account of the
Principal of, and interest on the Securities;
(b) any payment or distribution of assets of the Company of any kind
or character, from any source, whether in cash, property or securities to
which the Holders or the Trustee on behalf of the Holders would be entitled,
except for the subordination provisions of this Article Ten, would be paid by
the liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of Senior Indebtedness remaining unpaid
or unprovided for or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay or
provide for the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source, whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of principal of or interest on the Securities before all Senior
Indebtedness is paid in full in cash or cash equivalents (or such payment is
duly provided for), such payment or distribution (subject to the provision of
Section 10.6 and 10.7) shall be held in trust by the Trustee or such Holders
for the benefit of the holders of the Senior Indebtedness, or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full (except as such payment otherwise shall have been provided
for) of all Senior Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions and all provisions therefor to the
holders of such Senior Indebtedness, but only to the extent that as to any
holder of Senior Indebtedness, as promptly as practicable following notice
from the Trustee to the holders of Senior Indebtedness that such prohibited
payment has been received by the Trustee or Holder(s), such holder (or a
representative therefor) notifies the Trustee of the amounts then due and
owing on the Senior Indebtedness, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be paid to the holders
of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
SECTION 10.4 Securityholders to be Subrogated to Rights of Holders of
Senior Indebtedness. Subject to the payment in full in cash or cash
equivalents of all Senior Indebtedness (or provision made for its payment),
the Holders of Securities shall be subrogated
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to the rights of the holders of such Senior Indebtedness to receive payments
or distributions of assets of the Company applicable to the Senior
Indebtedness until all amounts owing on the Securities shall be paid in full,
in cash or cash equivalents and for the purpose of such subrogation no such
payments or distributions to the holders of Senior Indebtedness by or on
behalf of the Company, or by or on behalf of the Holders by virtue of this
Article Ten, which otherwise would have been made to the Holders shall, as
between the Company and the Holders, be deemed to be payment by the Company to
or on account of the Senior Indebtedness, it being understoodthat the
provisions of this Article Ten are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders
of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Ten shall have been
applied, pursuant to the provisions of this Article Ten, to the payment of
amounts payable under Senior Indebtedness, then the Holders shall be entitled
to receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of the Senior
Indebtedness in full in cash or cash equivalents.
SECTION 10.5 Obligations of the Company Unconditional. Nothing
contained in this Article Ten or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of, and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of the Senior Indebtedness,
nor shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Ten,
of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article Ten or elsewhere in
thisIndenture or in the Securities, upon any distribution of assets of the
Company referred to in this Article Ten, the Trustee, subject to the
provisions of Sections 8.1, 8.2 and 8.3, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceeding
are pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereonand all other facts pertinent thereto or to this Article
Ten. Nothing in this Section 10.5 shall apply to the claims of, or payments
to, the Trustee under or pursuant to Section 7.7.
Except as otherwise provided in this Section 10.5, in the event of
any inconsistency between the provisions of this Article Ten, on the one part,
and any other provision of this
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Indenture or any provision of the Securities, on the other part, the
provisions of this Article Ten shall govern.
SECTION 10.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment
to or by the Trustee unless and until a Trust Officer of the Trustee shall
have received, no later than three Business Days prior to such payment,
written notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 8.1
and 8.2, shall be entitled in all respects conclusively to assume that no such
fact exists.
SECTION 10.7 Application by Trustee of Assets Deposited with It.
Money or U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Section 8.1 shall be for the sole benefit
of Securityholders and, to the extent (i) the making of such deposit by the
Company shall not have been in contravention of any term or provision of any
agreement creating or evidencing Senior Indebtedness and (ii) allocated for
the payment of Securities, shall not be subject to the subordination
provisions of this Article Ten. Otherwise, any deposit of assets by the
Company with the Trustee or any Paying Agent (whether or not in trust) for the
payment of Principal of or interest on any Securities shall be subject to the
provisions of Sections 10.1, 10.2, 10.3 and 10.4; provided, that, if prior to
the second Business Day preceding the date on which by the terms of this
Indenture any such assets may become distributable for any purpose (including
without limitation, the payment of either Principal of or interest on any
Securities) the Trustee or such Paying Agent shall not have received with
respect to such assets thewritten notice provided for in Section 10.6, then
the Trustee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.
SECTION 10.8 Subordination Rights Not Impaired by Acts or Omissions
of the Company, the Trustee or Holders of Senior Indebtedness. No act, or
failure to act, of any holder of the Senior Indebtedness or their respective
representatives (including without limitation, any actionreferred to in this
Section 10.8), the Company, the Trustee, any Holder or any other Person with
the terms, covenants or the provisions of this Article Ten (regardless of any
knowledge thereof which any such holder of the Senior Indebtedness may have or
otherwise be charged with) or any reorganization or similar proceeding with
respect to the Company shall affect the provisions of this Article Ten, the
obligations owed by the Company, the Trustee or any Holder to the holders of
the Senior Indebtedness under this Article Ten or the rights of any holder of
Senior Indebtedness under this Article Ten.
The Company, the Trustee and each Holder each hereby agrees that the
taking of any of the following actions, with or without notice, by the holders
of the Senior Indebtedness and their respective representatives, will not in
any way affect the provisions of this Article Ten: (i)
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changing the manner, place or terms of payment or extending the time of
payment of, or renewing or altering, any agreement or instrument creating,
evidencing or governing any Senior Indebtedness, or consenting to any
amendment or change of any terms of any such agreement or instrument, each as
amended from time to time; (ii) granting extensions or renewals of any such
agreement or instrument and any other indulgence with respect thereto, or
effecting any release, compromise or settlement with respect thereto; (iii)
releasing any Person liable in any manner for the payment or collection of any
Senior Indebtedness; (iv) substituting, exchanging or releasing or otherwise
disposing of any item of security at any time securing any Senior
Indebtedness, whether or not the collateral, if any, received upon the
exercise of such power shall be of a character or value the same as or
different from the character or value of the item of security released; (v)
exercising or refraining from exercising any rights or remedies against the
Company or any other Person; and (vi) taking any other action, or refraining
from taking any action, that, in the absence of authority granted hereby,
could have the effect of impairing, invalidating or rendering unenforceable,
in whole or in part, or otherwise affecting, any of the provisions of this
Article Ten.
SECTION 10.9 Securityholders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of the Securities by his or her
acceptance thereof authorizes and expressly directs the Trustee on his or her
behalf to take such action in accordance with the terms of this Indenture as
may be necessary or appropriate to effectuate the subordination provisions
contained in this Article Ten and to protect the rights of the Holders
pursuant to this Indenture, and appoints the Trustee his or her
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or any reorganization or similar preceding with
respect to the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company) tending towards
liquidation of the business and assets of the Company, the immediate filing of
a claim for the unpaid balance of his or her Securities in the form required
in said proceedings and cause said claim to be approved. If the Trustee does
not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of the Senior Indebtedness or their
respective representatives are hereby authorized to have the right to file and
are hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness or their
respective representatives to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Indebtedness or
their respective representatives to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 10.10 Right of Trustee to Hold Senior Indebtedness. The
Trustee shall be entitled to all of the rights set forth in this Article Ten
in respect of any Senior Indebtedness at any time held by it to the same
extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
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SECTION 10.11 Article Ten Not to Prevent Events of Default. The
failure to make a payment on account of Principal of or interest on the
Securities by reason of any provision of this Article Ten shall not be
construed as preventing the occurrence of a Default or an Event of Default
under Section 6.1 or in any way prevent the Holders from exercising any right
hereunder other than the right to receive payment on the Securities.
SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct, bad faith or negligence) if it shall
in good faith mistakenly pay over or distribute to the Holders of Securities
or the Company or any other person, cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article Ten
or otherwise. Nothing in this Section 10.12 shall affect the obligation of any
other such person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their representative.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 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 11.2 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:
[___________________________]
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The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
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 atleast 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 11.2, 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 11.3 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.
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SECTION 11.4 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:
(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 11.5 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
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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 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 11.6 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 11.7 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 11.8 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 11.9 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 11.10 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 11.11 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 11.12 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.
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SECTION 11.13 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.
SECTION 11.14 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 11.15 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 11.16 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.
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SECTION 11.17 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.
SECTION 11.18 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.
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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
By:
- ------------------------- ---------------------------------
Name:
Title:
(SEAL) [_________________________],
Attest: as Trustee
By:
- ------------------------- ---------------------------------
Name:
Title:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _______________ day of ________________1997, before me
personally came _______________________, to me known, who, being by me duly
sworn, did depose and say that he is ________________________ of DONALDSON,
LUFKIN & JENRETTE, INC., one of the corporations described in and which
executed the foregoing instrument; that he knows the sealof said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation; and
that he signed his name thereto by like authority.
---------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _______________ day of ________________1997, before me
personally came _______________________, to me known, who, being by me duly
sworn, did depose and say that he is ________________________ of [____________
____________________], one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
---------------------------
Notary Public
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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
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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:
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<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.
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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
------------------------------
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EXHIBIT 4.4
[FORM OF SUBORDINATED DEBT SECURITY]
CUSIP:
No. $
[To be included on Registered Global Securities only: Unless and until it is
exchanged in whole or in part for [Notes] [Debentures] in definitive
registered form, this [Note] [Debenture] may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
[Sinking Fund Debenture]
Due ___
DONALDSON, LUFKIN & JENRETTE, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________, or registered assigns, at the office or agency of the Company in
New York, New York, the principal sum of ___________ [Dollars] on
_______________, [in the coin or currency of the United States,] and to pay
interest, [semi-annually on ______ and ______ of each year,] commencing
__________, on said principal sum at said office or agency, [in like coin or
currency,] at the rate per annum specified in the title of this [Note]
[Debenture], from the _____ or the ______, as the case may be, next preceding
the date of this [Note] [Debenture] to which interest has been paid or duly
provided for, unless the date hereof is a date to which interest has been paid
or duly provided for, in which case from the date of this [Note] [Debenture],
or unless no interest has been paid or duly provided for on these [Notes]
[Debentures], in which case from __________, until payment of said principal
sum has been made or duly provided for; provided, that payment of interest may
be made at the option of the Company by check mailed to the address of the
person entitled thereto as such address shall appear on the Security register
or by wire transfer as provided in the Indenture. Notwithstanding the
foregoing, if the date hereof is after the __th day of _____ or ______ , as
the case may be, and before the following _____ or ______, this [Note]
[Debenture] shall bear interest from such ______ or
<PAGE>
______; provided, that if the Company shall default in the payment of interest
due on such _____ or _____, then this [Note] [Debenture] shall bear interest
from the next preceding _____ or _____, to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for on
these [Notes] [Debentures], from ________. The interest so payable on any ____
or ____ will, subject to certain exceptions provided in the Indenture referred
to on the reverse hereof, be paid to the person in whose name this [Note]
[Debenture] is registered at the close of business on the ____ or ______, as
the case may be, next preceding such _____ or ______, whether or not such day
is a Business Day.
Reference is made to the further provisions of this [Note]
[Debenture] set forth on the reverse hereof. Such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
This [Note] [Debenture] shall not be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, DONALDSON, LUFKIN & JENRETTE, INC. has caused
this instrument to be signed manually or by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed
hereunto or imprinted hereon.
(SEAL) DONALDSON, LUFKIN & JENRETTE, INC.
Attest: By:
---------------------------
- --------------------------
2
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: [NAME OF TRUSTEE],
as Trustee
By:
------------------------------
Authorized Signatory
3
<PAGE>
REVERSE OF [NOTE] [DEBENTURE]
DONALDSON, LUFKIN & JENRETTE, INC.
__% [Note]
[Sinking Fund Debenture]
Due ____
This [Note] [Sinking Fund Debenture] is one of a duly authorized
issue of debentures, notes, bonds or other evidences of indebtedness of the
Company (hereinafter called the "Securities") of the series hereinafter
specified, all issued or to be issued under and pursuant to an indenture dated
as of [_____________] (herein called the "Indenture"), duly executed and
delivered by the Company to [____________], as Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption provisions (if
any), may be subject to different sinking, purchase or analogous funds (if
any) and may otherwise vary as in the Indenture provided. This [Note]
[Debenture] is one of a series designated as the ___% [Notes] [Sinking Fund
Debentures] Due ___ of the Company, limited in aggregate principal amount to
$________.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue Principal and, to the
extent lawful, on overdue installments of interest at the rate per annum borne
by this [Note] [Debenture]. If a payment date is not a Business Day as defined
in the Indenture at a place of payment, payment may be made at that place on
the next succeeding day that is a Business Day, and no interest shall accrue
for the intervening period.
In case an Event of Default with respect to the ___% [Notes] [Sinking Fund
Debentures] Due ____, 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, the Company and the Trustee may amend the 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
5
<PAGE>
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 the Indenture
or the Securities of such series; provided that, without the consent of each
Holder of the Securities 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 Security, 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 Security 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 Security 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 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 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 Security of such Holder; or (iv)
modify any of the provisions of the Indenture governing supplemental
indentures with the consent of Securityholders 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
Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable) of the 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 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 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 the Indenture; but no
5
<PAGE>
such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereto.
The Indenture provides that 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 the Indenture, subject to certain exceptions, with respect
to sections of the Indenture concerning the execution, authentication and
terms of the Securities, redemption of the Securities, Events of Default of
the Securities, defeasance of the Securities and amendment of the Indenture,
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 a board resolution or a supplemental
indenture establishing such series or tranche.
The Company, for itself and its successors, and each Holder, by
accepting the [Notes] [Debentures], agrees that the payment of the principal
of and interest on the [Notes] [Debentures] is subordinated, to the extent and
in the manner provided in the Indenture, to the right of payment in full of
all present and future Senior Indebtedness, and that the subordination
provisions in the Indenture are for the benefit of the holders of Senior
Indebtedness.
No reference herein to the Indenture and no provision of this [Note]
[Debenture] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal of and any
premium and interest on this [Note] [Debenture] in the manner, at the place,
at the respective times, at the rate and in the coin or currency herein
prescribed.
The [Notes] [Debentures] are issuable initially only in registered
form without coupons in denominations of [$1,000] or any integral multiple
thereof at the office or agency of the Company in the Borough of Manhattan,
The City of New York, and in the manner and subject to the limitations
provided in the Indenture.
[This [Note] [Debenture] will not be redeemable at the option of the
Company prior to maturity.] [This [Note] [Debenture] is redeemable prior to
maturity ...] [This Debenture
6
<PAGE>
is entitled to the benefits of a mandatory sinking fund as follows ...]
Upon due presentment for registration of transfer of this [Note]
[Debenture] at the office or agency of the Company in the Borough of
Manhattan, The City of New York, a new [Note or Notes] [Debenture or
Debentures] 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.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
[Note] [Debenture] (whether or not this [Note] [Debenture] shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for
the purpose of receiving payment of, or on account of, the Principal hereof
and, subject to the provisions hereof, interest hereon, 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.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any indenture supplemental thereto or in any
[Note] [Debenture], 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 hereof and as
part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts of
laws principles thereof) shall govern this [Note] [Debenture].
7
<PAGE>
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] [Debenture] and all rights thereunder, hereby
- -----------------------------------------------------------------
irrevocably constituting and appointing such person attorney
- -----------------------------------------------------------------
to transfer such [Note] [Debenture] on the books of the Issuer,
with full
- ----------------------------------------------------------------
power of substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within [Note]
[Debenture] in every particular without alteration or
enlargement or any change whatsoever.
Signature guarantee:_____________________________
8
<PAGE>
EXHIBIT 5.1
[Wilmer, Cutler & Pickering Letterhead]
August 22, 1997
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
We have acted as counsel in connection with the Company's
Registration Statement on Form S-3 (the "Registration Statement") filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, for the registration of the sale by Donaldson, Lufkin & Jenrette,
Inc. (the "Company") from time to time of up to $1,000,000,000 aggregate
principal amount of senior and subordinated debt securities (the "Debt
Securities"). The senior Debt Securities are to be issued pursuant to an
Indenture (the "Senior Indenture") between the Company and a Trustee party to
the Senior Indenture. The subordinated Debt Securities are to be issued
pursuant to an Indenture (the "Subordinated Indenture") between the Company and
a Trustee party to the Subordinated Indenture. Each of the Trustee under the
Senior Indenture and the Trustee under the Subordinated Indenture is referred
to herein individually as a "Trustee," and each of the Senior Indenture and
Subordinated Indenture is referred to herein individually as an "Indenture".
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
August 22, 1997
- 2 -
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary for the purposes of rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
When the Indenture and any supplemental indenture (the
"Applicable Indenture") to be entered into in connection with the issuance
of any Debt Security have been duly authorized, executed and delivered by the
Trustee and the Company, the specific terms of a particular Debt Security have
been duly authorized and established in accordance with the Applicable
Indenture and such Debt Security has been duly authorized, executed,
authenticated, issued and delivered in accordance with the applicable
Indenture and the applicable underwriting or other agreement, such Debt
Security will constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or similar laws now or hereinafter in effect relating to
or affecting the enforcement of creditors' rights generally and (b) the
availability of equitable remedies may be limited by equitable principles of
general applicability (regardless of whether considered in a proceeding at law
or in equity).
In connection with the opinion expressed above, we have
assumed that, at or prior to the time of the delivery of any such Security, (i)
the Board of Directors shall have duly established the terms of such Debt
Security and duly authorized the issuance and sale of such Debt Security and
such authorization shall not have been modified or rescinded; (ii) the
Registration Statement shall have been declared effective and such
effectiveness shall not have been terminated or rescinded; and (iii) there
shall not have occurred any change in law affecting the validity or
enforceability of such Debt Security. We have also assumed that none of the
terms of any Debt Security to be established subsequent to the date hereof, nor
the issuance and delivery of such security, nor the compliance by the Company
with the terms of such Debt Security will violate any applicable law or will
result in a violation of any provision of any instrument or agreement then
binding upon the Company, or any restriction imposed by any court or
governmental body having jurisdiction over the Company.
This opinion is based as to matters of law solely on
applicable provisions of (i) the General Corporation Law of the State of
Delaware, as amended, (ii) New York contract law (but not including any
statutes, ordinances, administrative decisions, rules or regulations of any
political subdivision of the State of New York), and (iii) federal statutes and
regulations, and we express no opinion as to any other laws, statutes,
ordinances, rules or regulations. We are licensed to practice law in the
District of Columbia and do not hold ourselves out as beings experts in the
laws of any other jurisdiction. Although we do not hold ourselves out as being
experts in the laws of any other jurisdiction, we have made such investigation
of the laws of the
<PAGE>
Donaldson, Lufkin & Jenrette, Inc.
August 22, 1997
- 3 -
States of Delaware and New York as we deemed necessary to express the opinions
set forth herein.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In addition, we consent to the reference to us
under the caption "Legal Matters" in the prospectus.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
WILMER, CUTLER & PICKERING
By: /s/ Russell J. Bruemmer
-------------------------------
Russell J. Bruemmer, a partner
<PAGE>
EXHIBIT 12.1
STATEMENT RE COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Six Months
FISCAL YEAR ENDED DECEMBER 31, Ended
-------------------------------------------------------------- June 30,
1992 1993 1994 1995 1996 1997
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before provision for
income taxes $245,000 $302,000 $205,000 $298,500 $473,800 $ 311,000
Add: Fixed Charges
Interest expense (gross) 1,130,709 1,465,303 2,116,655 2,699,769 2,865,800 1,830,971
Interest factor in rents 13,899 15,432 18,565 22,064 25,515 15,154
---------- ---------- ---------- ---------- ---------- ----------
Total fixed charges 1,144,608 1,480,735 2,135,220 2,721,833 2,891,319 1,846,125
Earnings before fixed charges
and provision for income taxes $1,389,608 $1,782,735 $2,340,220 $3,020,333 $3,365,115 $2,157,125
========== ========== ========== ========== ========== ==========
Ratio of earnings to fixed charges 1.21 1.20 1.10 1.11 1.16 1.17
==== ==== ==== ==== ==== ====
</TABLE>
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
Donaldson, Lufkin & Jenrette, Inc.:
We consent to the incorporation by reference in the registration
statement of our report dated February 3, 1997 which is included
in the December 31, 1996 annual report on Form 10-K of Donaldson,
Lufkin & Jenrette, Inc., also incorporated herein by reference,
and to the reference to our firm under the heading "Experts" in the
registration statement.
/s/ KPMG Peat Marwick LLP
New York, New York
August 22, 1997
<PAGE>
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Donaldson, Lufkin & Jenrette, Inc.
(Exact name of obligor as specified in its charter)
DELAWARE 13-1898818
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which
is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 18th day
of August, 1997.
THE CHASE MANHATTAN BANK
By /s/ Victor Evans
------------------------
Victor Evans
Second Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................... $13,892
Interest-bearing balances ................................... 4,282
Securities:
Held to maturity
securities ....................................................... 2,857
Available for sale securities .................................... 34,091
Federal Funds sold and securities purchased under
agreements to resell ........................................ 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income $124,827
Less: Allowance for loan and lease losses 2,753
Less: Allocated transfer risk reserve 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ...................................... 122,061
Trading Assets ................................................... 56,042
Premises and fixed assets (including capitalized leases) ......... 2,904
Other real estate owned .......................................... 306
Investments in unconsolidated subsidiaries and
associated companies ........................................ 232
Customers' liability to this bank on acceptances
outstanding ................................................. 2,092
Intangible assets ................................................ 1,532
Other assets ..................................................... 10,448
TOTAL ASSETS ..................................................... $280,709
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ...................................... $ 91,249
Noninterest-bearing ............................. $38,157
Interest-bearing ................................ 53,092
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ................................................ 70,192
Noninterest-bearing ............................. $ 3,712
Interest-bearing ................................ 66,480
Federal funds purchased and securities sold under agree-
ments to repurchase ........................................... 35,185
Demand notes issued to the U.S. Treasury ...................... 1,000
Trading liabilities ........................................... 42,307
OtherBorrowed money (includes mortgage indebtedness and obligations under
calitalized leases):
With a remaining maturity of one year or less ............ 4,593
With a remaining maturity of more than one year .
through three years................................ 260
With a remaining maturity of more than three years....... 146
Bank's liability on acceptances executed and outstanding....... 2,092
Subordinated notes and debentures ............................. 5,715
Other liabilities.............................................. 11,373
TOTAL LIABILITIES ............................................. 264,112
---------
EQUITY CAPITAL
Perpetual Preferred stock and related surplus.................. 0
Common stock .................................................. 1,211
Surplus (exclude all surplus related to preferred stock)...... 10,283
Undivided profits and capital reserves ........................ 5,280
Net unrealized holding gains (Losses)
on available-for-sale securities .............................. (193)
Cumulative foreign currency translation adjustments ........... 16
TOTAL EQUITY CAPITAL .......................................... 16,597
--------
TOTAL LIABILITIES AND EQUITY CAPITAL .......................... $280,709
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
