<PAGE> 1
REGISTRATION NO. 333-
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BANC ONE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
OHIO 31-0738296
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
------------------------
100 EAST BROAD STREET, COLUMBUS, OHIO 43271, (614) 248-5944
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
STEVEN ALAN BENNETT
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
BANC ONE CORPORATION
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0158
(614) 248-7590
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
With Copies to:
<TABLE>
<S> <C>
KENNETH L. WAGNER, ESQ. B. ROBBINS KIESSLING, ESQ.
BANC ONE CORPORATION CRAVATH, SWAINE & MOORE
100 EAST BROAD STREET WORLDWIDE PLAZA
COLUMBUS, OHIO 43271-0158 825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, subject to
market conditions and other factors.
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, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration 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 number of the earlier 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. [X]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT OFFERING PRICE FEE(2)(3)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.................... N/A N/A $2,400,000,000(1) $727,273
===============================================================================================================================
</TABLE>
(1) In no event will the aggregate initial offering price of the Debt Securities
issued under this Registration Statement, and not previously registered
under the Securities Act of 1933, exceed $2,400,000,000, or the equivalent
thereof in one or more foreign or composite currencies.
(2) Calculated pursuant to Rule 457(o) under the Securities Act of 1933.
(3) In accordance with Rule 429 under the Securities Act of 1933, the Prospectus
included herein is a combined prospectus which also relates to the
Registrant's Registration Statement on Form S-3, File No. 33-64195 (the
"Prior Registration Statement"). This Registration Statement, which is a new
registration statement, also constitutes the first post-effective amendment
to the Prior Registration Statement. Such post-effective amendment shall
hereafter become effective concurrently with the effectiveness of this
Registration Statement in accordance with Section 8(a) of the Securities Act
of 1933. The amount of securities eligible to be sold under the Prior
Registration Statement ($500,000,000 as of February 26, 1997) shall be
carried forward to this Registration Statement. The amount of the filing fee
associated with such securities that was previously paid with the Prior
Registration Statement is $172,413.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
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 STATE.
SUBJECT TO COMPLETION, FEBRUARY 26, 1997
PROSPECTUS [LOGO]
BANC ONE CORPORATION
DEBT SECURITIES
BANC ONE CORPORATION ("BANC ONE") may issue from time to time, together or
separately, in one or more series, its unsecured debt securities ("Debt
Securities"), which may be either senior (the "Senior Securities") or
subordinated (the "Subordinated Securities") in priority of payment, in amounts,
at prices and on terms to be determined at the time of the offering.
BANC ONE may issue Debt Securities for proceeds up to an aggregate of
$2,900,000,000, or the equivalent thereof if any of the Debt Securities are
denominated in a foreign currency or a foreign currency unit, including the
European Currency Unit ("ECU"). The Debt Securities of each series will be
offered on terms determined at the time of sale. The Debt Securities may be sold
for U.S. dollars, foreign currencies or foreign currency units, and the
principal of, and any interest on, the Debt Securities may be payable in U.S.
dollars, foreign currencies or foreign currency units.
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of BANC ONE. The Subordinated Securities will be
unsecured and subordinated as described under "Subordinated Securities".
Unless otherwise specified in the Prospectus Supplement relating to
Subordinated Securities, payment of the principal of Subordinated Securities may
be accelerated only in the case of certain events involving the bankruptcy,
insolvency or reorganization of BANC ONE, and no right of acceleration will
exist in the case of default in the payment of principal of, premium, if any, or
interest on the Subordinated Securities or in the performance of any other
covenant.
When a particular series of Debt Securities, in respect of which this
Prospectus is being delivered, is offered, a supplement to this Prospectus (the
"Prospectus Supplement") setting forth certain terms of the offered Debt
Securities will be delivered together with this Prospectus. The applicable
Prospectus Supplement, among other things and where applicable, will include the
specific designation, priority, aggregate principal amount, currency or currency
unit, rate (or method of calculation) and time of payment of any interest,
authorized denominations, maturity, offering price, place or places of payment,
redemption terms, terms of any repayment at the option of the holder, special
provisions relating to Debt Securities in bearer form, terms for sinking fund
payments, provisions regarding original issue discount securities and other
terms of such Debt Securities.
The Prospectus Supplement will also contain information, where applicable,
about certain U.S. federal income tax considerations relating to, and any
listing on a securities exchange of, the Debt Securities covered by the
Prospectus Supplement.
------------------------------
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF BANC ONE AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL
AGENCY.
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------------
THE DATE OF THIS PROSPECTUS IS , 1997.
<PAGE> 3
The Debt Securities may be sold by BANC ONE directly, through agents
designated from time to time, through underwriting syndicates led by one or more
managing underwriters or through one or more underwriters acting alone. If any
agent of BANC ONE, or any underwriter, is involved in the sale of the Debt
Securities, the name of such agent or underwriter, the principal or stated
amount to be purchased by it, any applicable commissions or discounts and the
net proceeds to BANC ONE from such sale will be set forth in, or may be
calculated from, the Prospectus Supplement. BANC ONE may also issue contracts
under which the counterparty may be required to purchase Debt Securities. Such
contracts would be issued with the Debt Securities in amounts, at prices and on
terms to be set forth in the applicable Prospectus Supplement. The aggregate net
proceeds to BANC ONE from the sale of all the Debt Securities will be the public
offering or purchase price of the Debt Securities sold less the aggregate of
such commissions and discounts and other expenses of issuance and distribution.
See "Plan of Distribution".
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFERING MADE
HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY BANC ONE OR BY ANOTHER PERSON. THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION.
AVAILABLE INFORMATION
BANC ONE is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Information, as of particular dates, concerning
directors and executive officers, their compensation, options granted to them,
the principal holders of securities of BANC ONE and any material interest of
such persons in transactions with BANC ONE is disclosed in proxy statements
distributed to stockholders of BANC ONE and filed with the Commission. Such
reports, proxy statements and other information can be inspected and copied at
the Public Reference Room of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and the Commission's Regional Offices at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center
(13th Floor), New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. In addition, such material may be
accessed electronically at the Commission's site on the World Wide Web located
at http://www.sec.gov. Such reports, proxy statements and other material
concerning BANC ONE may also be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York.
BANC ONE has filed with the Commission a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Debt Securities being offered by this Prospectus. This Prospectus does not
contain all the information set forth in the Registration Statement, certain
portions of which have been omitted as permitted by the rules and regulations of
the Commission. For further information with respect to BANC ONE and the Debt
Securities, reference is made to the Registration Statement, including the
exhibits thereto. The Registration Statement may be inspected by anyone without
charge at the principal office of the Commission in Washington, D.C. and copies
of all or any part of it may be obtained from the Commission upon payment of the
prescribed fees.
2
<PAGE> 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by BANC ONE with the Commission
pursuant to Section 13 of the Exchange Act are incorporated herein by reference:
(i) BANC ONE's Annual Report on Form 10-K for the year ended December
31, 1995 (as amended by Form 10-K/A filed June 27, 1996);
(ii) BANC ONE's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996; and
(iii) BANC ONE's Current Reports on Form 8-K filed January 28, 1997
and January 29, 1997.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference into this Prospectus 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 statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS MAY OBTAIN WITHOUT CHARGE,
UPON WRITTEN OR ORAL REQUEST, A COPY OF ANY OF THE DOCUMENTS INCORPORATED BY
REFERENCE HEREIN, EXCEPT FOR THE EXHIBITS TO SUCH DOCUMENTS (UNLESS SUCH
EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS).
REQUESTS SHOULD BE ADDRESSED TO BANC ONE CORPORATION, OH1-0251,100 EAST BROAD
STREET, COLUMBUS, OHIO 43271-0251, ATTENTION: INVESTOR RELATIONS, (614)
248-6889.
3
<PAGE> 5
BANC ONE CORPORATION
BANC ONE is a multi-bank holding company that, at December 31, 1996,
operated approximately 1,500 banking offices in Arizona, Colorado, Illinois,
Indiana, Kentucky, Louisiana, Ohio, Oklahoma, Texas, Utah, West Virginia and
Wisconsin. At December 31, 1996, BANC ONE had consolidated total assets of
$101.8 billion, consolidated total deposits of $72.4 billion and consolidated
total stockholders' equity of $8.6 billion. At September 30, 1996, BANC ONE
ranked 10th among the nation's publicly owned bank holding companies in terms of
consolidated average total assets and 9th in terms of consolidated average
common equity.
At December 31, 1995 BANC ONE's bank subsidiaries (the "affiliate banks")
held the largest statewide share of total bank deposits in Arizona and Kentucky,
the second largest share of such deposits in Indiana, Ohio and West Virginia,
and the third largest share of such deposits in Colorado, Wisconsin and Texas.
BANC ONE has smaller statewide market shares in the other states in which BANC
ONE operates banks. At December 31, 1996, except for Bank One, Texas, N.A., no
single BANC ONE affiliate bank accounted for more than 20% of BANC ONE's
consolidated total assets. BANC ONE also owns nonbank subsidiaries that engage
in credit card and merchant processing, consumer and education finance, mortgage
banking, insurance, venture capital, investment and merchant banking, trust,
brokerage, investment management, equipment leasing and data processing.
Since its formation in 1968, BANC ONE has acquired over 100 banking
institutions and the number of banking offices of its affiliate banks has
increased from 24 to approximately 1,500. BANC ONE continues to explore
opportunities to acquire banks and nonbank companies permitted by the Bank
Holding Company Act of 1956, as amended (the "BHCA"). Discussions are
continually being carried on relating to such acquisitions. It is not presently
known whether, or on what terms, such discussions will result in further
acquisitions. Such acquisitions may be pending, from time to time, during the
time that the Debt Securities are being offered.
BANC ONE is a legal entity separate and distinct from its affiliate banks
and its nonbanking subsidiaries (collectively, the "affiliates"). Accordingly,
the right of BANC ONE, and thus the right of BANC ONE's creditors and
shareholders, to participate in any distribution of the assets or earnings of
any affiliate is necessarily subject to the prior claims of creditors of the
affiliate except to the extent that claims of BANC ONE in its capacity as a
creditor may be recognized. The principal sources of BANC ONE's revenues are
dividends and fees from its affiliates. See "Regulatory Matters--Dividend
Restrictions" for a discussion of the restrictions on the affiliate banks'
ability to pay dividends to BANC ONE.
BANC ONE is incorporated in Ohio and has functioned as a multi-bank holding
company since 1968. Its executive offices are located at 100 East Broad Street,
Columbus, Ohio 43271, and its telephone number is (614) 248-5944.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS ENDED YEARS ENDED DECEMBER 31,
SEPTEMBER 30, ----------------------------------------
1996 1995 1994 1993 1992 1991
----------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Excluding interest on deposits........ 3.45x 3.59x 3.40x 6.08x 5.17x 3.21x
Including interest on deposits........ 1.66 1.63 1.66 1.97 1.58 1.31
</TABLE>
Earnings are comprised of income before income taxes, change in accounting
principle and equity in earnings of Bank One, Texas, N.A., plus fixed charges.
Fixed charges include interest expense (including the interest factor of
capitalized leases, capitalized interest and amortization of deferred debt
expense) plus the portion of rental payments under operating leases deemed to be
interest. Results of Bank One, Texas, N.A. are consolidated beginning October 1,
1991.
4
<PAGE> 6
USE OF PROCEEDS
BANC ONE currently intends to use the net proceeds from the sale of any
Debt Securities for general corporate purposes, which may include the reduction
of short-term indebtedness, investments at the holding company level,
investments in or extensions of credit to its affiliates and other banks and
companies engaged in other financial service activities, possible acquisitions
and such other purposes as may be stated in any Prospectus Supplement. Pending
such use, the net proceeds may be temporarily invested. The precise amounts and
timing of the application of proceeds will depend upon the funding requirements
of BANC ONE and its affiliates and the availability of other funds. Except as
may be described in any Prospectus Supplement, specific allocations of the
proceeds to such purposes will not have been made at the date of such Prospectus
Supplement. Based upon the historical and anticipated future growth of BANC ONE
and the financial needs of its affiliates, BANC ONE may engage in additional
financings of a character and amount to be determined as the need arises.
REGULATORY MATTERS
The following discussion sets forth certain of the material elements of the
regulatory framework applicable to bank holding companies and their subsidiaries
and provides certain specific information relevant to BANC ONE. This regulatory
framework is intended primarily for the protection of depositors and the federal
deposit insurance funds and not for the protection of security holders. To the
extent that the following information describes statutory and regulatory
provisions, it is qualified in its entirety by reference to those provisions. A
change in the statutes, regulations or regulatory policies applicable to BANC
ONE or its subsidiaries may have a material effect on the business of BANC ONE.
GENERAL
As a bank holding company, BANC ONE is subject to regulation under the
BHCA, and to inspection, examination and supervision by the Federal Reserve.
Under the BHCA, bank holding companies generally may not acquire the ownership
or control of more than 5% of the voting shares or substantially all the assets
of any company, including a bank, without the Federal Reserve's prior approval.
In addition, bank holding companies generally may engage, directly or
indirectly, only in banking and such other activities as are determined by the
Federal Reserve to be closely related to banking.
Various governmental requirements, including Sections 23A and 23B of the
Federal Reserve Act, limit borrowings by BANC ONE and its nonbank subsidiaries
from BANC ONE's affiliate banks, and also limit various other transactions
between BANC ONE and its nonbank subsidiaries, on the one hand, and BANC ONE's
affiliate banks, on the other. For example, Section 23A limits to no more than
10% of its total capital the aggregate outstanding amount of any bank's loans
and other "covered transactions" with any particular nonbank affiliate; and
limits to no more than 20% of its total capital the aggregate outstanding amount
of any bank's covered transactions with all of its nonbank affiliates. Section
23A also generally requires that a bank's loans to its nonbank affiliates be
secured, and Section 23B generally requires that a bank's transactions with its
nonbank affiliates be on arms' length terms.
Most of BANC ONE's affiliate banks are national banking associations and,
as such, are subject to regulation primarily by the Office of the Comptroller of
the Currency ("OCC") and, secondarily, by the Federal Deposit Insurance
Corporation ("FDIC") and the Federal Reserve. BANC ONE's state-chartered banks
also are subject to regulation by the FDIC and the Federal Reserve and, in
addition, by their respective state banking departments. BANC ONE and its
subsidiaries also are affected by the fiscal and monetary policies of the
federal government and the Federal Reserve, and by various other governmental
requirements and regulations.
LIABILITY FOR BANK SUBSIDIARIES
The Federal Reserve has a policy to the effect that a bank holding company
is expected to act as a source of financial and managerial strength to each of
its subsidiary banks and to maintain resources adequate to
5
<PAGE> 7
support each such subsidiary bank. This support may be required at times when
BANC ONE may not have the resources to provide it. In addition, Section 55 of
the National Bank Act permits the OCC to order the pro rata assessment of
shareholders of a national bank whose capital has become impaired. If a
shareholder fails within three months to pay such an assessment, the OCC can
order the sale of the shareholder's stock to cover the deficiency. In the event
of a bank holding company's bankruptcy, any commitment by the bank holding
company to a federal bank regulatory agency to maintain the capital of a
subsidiary bank would be assumed by the bankruptcy trustee and entitled to
priority of payment.
Any depository institution insured by the FDIC can be held liable for any
loss incurred, or reasonably expected to be incurred, by the FDIC in connection
with (i) the default of a commonly controlled FDIC-insured depository
institution or (ii) any assistance provided by the FDIC to a commonly controlled
FDIC-insured depository institution in danger of default. "Default" is defined
generally as the appointment of a conservator or receiver and "in danger of
default" is defined generally as the existence of certain conditions indicating
that a "default" is likely to occur in the absence of regulatory assistance.
Also, in the event that such a default occurred with respect to a bank, any
loans to the bank from its parent holding company would be subordinate in right
of payment to payment of the bank's depositors and certain of its other
obligations.
CAPITAL REQUIREMENTS
BANC ONE is subject to capital ratios, requirements and guidelines imposed
by the Federal Reserve, which are substantially similar to the ratios,
requirements and guidelines imposed by the Federal Reserve, the OCC and the FDIC
on the banks within their respective jurisdictions. These capital requirements
establish higher capital standards for banks and bank holding companies that
assume greater credit risks. For this purpose, a bank's or holding company's
assets and certain specified off-balance sheet commitments are assigned to four
risk categories, each weighted differently based on the level of credit risk
that is ascribed to such assets or commitments. A bank's or holding company's
capital, in turn, is divided into two tiers: core ("Tier 1") capital, which
includes common equity, non-cumulative perpetual preferred stock and related
surplus (excluding auction rate issues), and minority interests in equity
accounts of consolidated subsidiaries, less goodwill, certain identifiable
intangible assets and certain other assets; and supplementary ("Tier 2")
capital, which includes, among other items, perpetual preferred stock not
meeting the Tier 1 definition, mandatory convertible securities, subordinated
debt and allowances for loan and lease losses, subject to certain limitations,
less certain required deductions.
BANC ONE, like other bank holding companies, currently is required to
maintain Tier 1 and total capital (the sum of Tier 1 and Tier 2 capital) equal
to at least 4% and 8% of its total risk-weighted assets, respectively. At
December 31, 1996, BANC ONE met both requirements, with Tier 1 and total capital
equal to 9.03% and 13.12% of its total risk-weighted assets, respectively.
The Federal Reserve also requires bank holding companies to maintain a
minimum "leverage ratio" (Tier 1 capital to adjusted total assets) of 3%, if the
holding company has the highest regulatory rating and meets certain other
requirements, or of 3% plus an additional cushion of at least 100 to 200 basis
points if the holding company does not meet these requirements. At December 31,
1996, BANC ONE's leverage ratio was 8.24%.
The Federal Reserve may set capital requirements higher than the minimums
noted above for holding companies whose circumstances warrant it. For example,
holding companies experiencing or anticipating significant growth may be
expected to maintain capital ratios including tangible capital positions well
above the minimum levels. The Federal Reserve has not, however, imposed any such
special capital requirement on BANC ONE.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions,
6
<PAGE> 8
depending on the category in which an institution is classified. Failure to meet
the capital guidelines could also subject a banking institution to capital
raising requirements. An "undercapitalized" bank must develop a capital
restoration plan and its parent holding company must guarantee that bank's
compliance with the plan. The liability of the parent holding company under any
such guarantee is limited to the lesser of 5% of the bank's assets at the time
it became "undercapitalized" or the amount needed to comply with the plan.
Furthermore, in the event of the bankruptcy of the parent holding company, such
guarantee would take priority over the parent's general unsecured creditors. In
addition, FDICIA requires the various regulatory agencies to prescribe certain
non-capital standards for safety and soundness relating generally to operations
and management, asset quality and executive compensation and permits regulatory
action against a financial institution that does not meet such standards.
The Federal Reserve, the FDIC and the OCC have adopted rules to incorporate
market and interest rate risk components into their risk-based capital
standards.
DIVIDEND RESTRICTIONS
Various federal and state statutory provisions limit the amount of
dividends BANC ONE's affiliate banks can pay to BANC ONE without regulatory
approval. The approval of the appropriate bank regulator is required for any
dividend by a national bank or by a state-chartered bank that is a member of the
Federal Reserve System (a "state member bank") if the total of all dividends
declared by the bank in any calendar year would exceed the total of its net
profits, as defined by regulatory agencies, for such year combined with its
retained net profits for the preceding two years. In addition, a national bank
or a state member bank may not pay a dividend in an amount greater than its net
profits then on hand. At December 31, 1996, $0.6 billion of the total
stockholders' equity of the affiliate banks was available for payment of
dividends to BANC ONE without approval by the applicable regulatory authority.
In addition, federal bank regulatory authorities have authority to prohibit
BANC ONE's affiliate banks from engaging in an unsafe or unsound practice in
conducting their business. The payment of dividends, depending upon the
financial condition of the bank in question, could be deemed to constitute such
an unsafe or unsound practice. The ability of BANC ONE's affiliate banks to pay
dividends in the future is presently, and could be further, influenced by bank
regulatory policies and capital guidelines.
DEPOSIT INSURANCE ASSESSMENTS
The deposits of each of BANC ONE's affiliate banks are insured up to
regulatory limits by the FDIC and, accordingly, are subject to deposit insurance
assessments to maintain the Bank Insurance Fund ("BIF") and Savings Association
Insurance Fund ("SAIF") administered by the FDIC. The FDIC has adopted
regulations establishing a permanent risk-related deposit insurance assessment
system. Under this system, the FDIC places each insured bank in one of nine risk
categories based on (a) the bank's capitalization and (b) supervisory
evaluations provided to the FDIC by the institution's primary federal regulator.
Each insured bank's insurance assessment rate is then determined by the risk
category in which it is classified by the FDIC.
Effective January 1, 1997, the annual insurance premiums on bank deposits
insured by the BIF and SAIF vary between $0.00 per $100 of deposits for banks
classified in the highest capital and supervisory evaluation categories to $0.27
per $100 of deposits for banks classified in the lowest capital and supervisory
evaluation categories.
The Deposit Insurance Funds Act of 1996 ("DIFA") provides for assessments
to be imposed on insured depository institutions with respect to deposits
insured by the BIF and the SAIF (in addition to assessments currently imposed on
depository institutions with respect to BIF- and SAIF-insured deposits) to pay
for the cost of Financing Corporation ("FICO") funding. The FDIC established the
FICO assessment rates effective January 1, 1997 at $0.013 per $100 annually for
BIF-assessable deposits and $0.0648 per $100 annually for SAIF-assessable
deposits. BANC ONE's affiliate banks held approximately $5.3 billion of
SAIF-assessable deposits as of January 1, 1997. The FICO assessments do not vary
depending upon a depository institution's capitalization or supervisory
evaluations. BANC ONE currently estimates its FICO assessments may amount
7
<PAGE> 9
to $8 million after-tax in 1997 with similar assessments per year through 1999
(or earlier if no savings associations exist prior to December 31, 1999) in
connection with such funding.
DEPOSITOR PREFERENCE STATUTE
Federal legislation has been enacted providing that deposits and certain
claims for administrative expenses and employee compensation against an insured
depository institution would be afforded a priority over other general unsecured
claims against such institution, including federal funds and letters of credit,
in the "liquidation or other resolution" of the institution by any receiver.
BROKERED DEPOSITS
Under FDIC regulations, no FDIC-insured bank or savings institution can
accept brokered deposits unless it (a) is well capitalized, or (b) is adequately
capitalized and receives a waiver from the FDIC. In addition, these regulations
prohibit any bank or savings institution that is not well capitalized from (i)
paying an interest rate on deposits in excess of 75 basis points over certain
prevailing market rates or (ii) offering "pass through" deposit insurance on
certain employee benefit plan accounts unless it provides certain notice to
affected depositors. At December 31, 1996, BANC ONE's affiliate banks had
aggregate total brokered deposits of approximately $9.9 million.
INTERSTATE BANKING
Under the Riegle-Neal Interstate Banking and Branching Efficiency Act of
1994 ("Riegle-Neal"), subject to certain concentration limits, (a) bank holding
companies such as BANC ONE are permitted, beginning September 29, 1995, to
acquire banks and bank holding companies located in any state; (b) any bank that
is a subsidiary of a bank holding company is permitted, again beginning
September 29, 1995, to receive deposits, renew time deposits, close loans,
service loans and receive loan payments as an agent for any other bank
subsidiary of that holding company; and (c) banks are permitted, beginning June
1, 1997, to acquire branch offices outside their home states by merging with
out-of-state banks, purchasing branches in other states, and establishing de
novo branch offices in other states, provided that, in the case of any such
purchase or opening of individual branches, the host state has adopted
legislation "opting in" to those provisions of Riegle-Neal; and provided that,
in the case of a merger with a bank located in another state, the host state has
not adopted legislation "opting out" of that provision of Riegle-Neal. BANC ONE
might use Riegle-Neal to acquire banks in additional states and to consolidate
its affiliate banks under a smaller number of separate charters.
8
<PAGE> 10
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities will constitute either Senior Securities or
Subordinated Securities. The Senior Securities will be issued under an Indenture
dated as of March 3, 1997 (the "Senior Indenture") between BANC ONE and The
Chase Manhattan Bank ("Chase"), as Trustee. The Subordinated Securities will be
issued under an Indenture dated as of March 3, 1997 (the "Subordinated
Indenture"), between BANC ONE and Chase, as Trustee. The Senior Indenture and
the Subordinated Indenture are collectively referred to herein as the
"Indentures". References to the "Trustee" shall mean Chase in its capacity as
trustee under the Senior Indenture or the Subordinated Indenture, as applicable.
The statements under this caption are brief summaries of certain provisions
contained in the Indentures, do not purport to be complete and are qualified in
their entirety by reference to the applicable Indenture, copies of which are
exhibits to the Registration Statement. Whenever defined terms are used but not
defined herein, such terms shall have the meanings ascribed to them in the
applicable Indenture, it being intended that such defined terms shall be
incorporated herein by reference.
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of any Debt Securities
and the extent, if any, to which such general provisions may apply to such Debt
Securities will be described in the Prospectus Supplement relating to such Debt
Securities.
Neither of the Indentures limits the aggregate principal amount of Debt
Securities which may be issued thereunder, and each Indenture provides that Debt
Securities of any series may be issued thereunder up to the aggregate principal
amount which may be authorized from time to time by BANC ONE and may be
denominated in any currency or currency unit designated by BANC ONE. Neither the
Indentures nor the Debt Securities will limit or otherwise restrict the amount
of other indebtedness which may be incurred or the other securities which may be
issued by BANC ONE or any of its subsidiaries.
Debt Securities of a series may be issuable in registered form without
coupons ("Registered Securities"), in bearer form with or without coupons
attached ("Bearer Securities") or in the form of one or more global securities
in registered or bearer form (each a "Global Security"). Bearer Securities, if
any, will be offered only to non-United States persons and to offices located
outside the United States of certain United States financial institutions.
Reference is made to the Prospectus Supplement for a description of the
following terms, where applicable, of each series of Debt Securities in respect
of which this Prospectus is being delivered: (1) the title of such Debt
Securities; (2) the limit, if any, on the aggregate principal amount or
aggregate initial public offering price of such Debt Securities; (3) the
priority of payment of such Debt Securities; (4) the price or prices (which may
be expressed as a percentage of the aggregate principal amount thereof) at which
the Debt Securities will be issued; (5) the date or dates on which the principal
of the Debt Securities will be payable; (6) the rate or rates (which may be
fixed or variable) per annum at which such Debt Securities will bear interest,
if any, or the method of determining the same; (7) the date or dates from which
such interest, if any, on the Debt Securities will accrue, the date or dates on
which such interest, if any, will be payable, the date or dates on which payment
of such interest, if any, will commence and the Regular Record Dates for such
Interest Payment Dates; (8) the extent to which any of the Debt Securities will
be issuable in temporary or permanent global form, or the manner in which any
interest payable on a temporary or permanent global Debt Security will be paid;
(9) each office or agency where, subject to the terms of the applicable
Indenture, the Debt Securities may be presented for registration of transfer or
exchange; (10) the place or places where the principal of (and premium, if any)
and interest, if any, on the Debt Securities will be payable; (11) the date or
dates, if any, after which such Debt Securities may be redeemed or purchased in
whole or in part, at the option of BANC ONE or mandatorily pursuant to any
sinking, purchase or analogous fund or may be required to be purchased or
redeemed at the option of the holder, and the redemption or repayment price or
prices thereof; (12) the denomination or denominations in which such Debt
Securities are authorized to be issued; (13) the currency, currencies or units
(including ECU) based on or related to currencies for which the Debt Securities
may be purchased and the currency, currencies or currency units (including ECU)
in which the principal of, premium, if any, and any interest on such Debt
Securities may be
9
<PAGE> 11
payable; (14) any index used to determine the amount of payments of principal
of, premium, if any, and interest on the Debt Securities; (15) whether any of
the Debt Securities are to be issuable as Bearer Securities and/or Registered
Securities, and if issuable as Bearer Securities, any limitations on issuance of
such Bearer Securities and any provisions regarding the transfer or exchange of
such Bearer Securities (including exchange for registered Debt Securities of the
same series); (16) the payment of any additional amounts with respect to the
Debt Securities; (17) whether any of the Debt Securities will be issued as
Original Issue Discount Securities (as defined below); (18) information with
respect to book-entry procedures, if any; (19) any additional covenants or
Events of Default not currently set forth in the applicable Indenture; and (20)
any other terms of such Debt Securities not inconsistent with the provisions of
the applicable Indenture.
If any of the Debt Securities are sold for one or more foreign currencies
or foreign currency units or if the principal of, premium, if any, or interest
on any series of Debt Securities is payable in one or more foreign currencies or
foreign currency units, the restrictions, elections, tax consequences, specific
terms and other information with respect to such issue of Debt Securities and
such currencies or currency units will be set forth in the Prospectus Supplement
relating thereto. A judgment for money damages by courts in the United States,
including a money judgment based on an obligation expressed in a foreign
currency, will ordinarily be rendered only in U.S. dollars. New York statutory
law provides that a court shall render a judgment or decree in the foreign
currency of the underlying obligation and that the judgment or decree shall be
converted into U.S. dollars at the exchange rate prevailing on the date of entry
of the judgment or decree.
Debt Securities may be issued as original issue discount Debt Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) ("Original Issue Discount Securities"), to be sold at a
substantial discount below the stated principal amount thereof due at the stated
maturity of such Debt Securities. There may not be any periodic payments of
interest on Original Issue Discount Securities as defined herein. In the event
of an acceleration of the maturity of any Original Issue Discount Security, the
amount payable to the holder of such Original Issue Discount Security upon such
acceleration will be determined in accordance with the Prospectus Supplement,
the terms of such security and the Indenture, but will be an amount less than
the amount payable at the maturity of the principal of such Original Issue
Discount Security. Federal income tax considerations with respect to Original
Issue Discount Securities will be set forth in the Prospectus Supplement
relating thereto.
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities will be issued only as Registered Securities. If Bearer Securities
are issued, the United States Federal income tax consequences and other special
considerations, procedures and limitations applicable to such Bearer Securities
will be described in the Prospectus Supplement relating thereto.
Debt Securities issued as Registered Securities will be without coupons.
Debt Securities issued as Bearer Securities shall have interest coupons
attached, unless issued as zero coupon securities.
Registered Securities (other than a Global Security) may be presented for
transfer (with the form of transfer endorsed thereon duly executed) or exchanged
for other Debt Securities of the same series at the office of the Note Registrar
specified according to the terms of the applicable Indenture. BANC ONE has
agreed in each of the Indentures that, with respect to Registered Securities
having The City of New York as a place of payment, BANC ONE will appoint a Note
Registrar or Co-Note Registrar located in The City of New York for such transfer
or exchange. Such transfer or exchange shall be made without service charge, but
BANC ONE may require payment of any taxes or other governmental charges as
described in the applicable Indenture. Provisions relating to the exchange of
Bearer Securities for other Debt Securities of the same series (including, if
applicable, Registered Securities) will be described in the applicable
Prospectus Supplement. In no event, however, will Registered Securities be
exchangeable for Bearer Securities.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depositary (the "Depositary") identified in the
10
<PAGE> 12
Prospectus Supplement relating to such series. Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
Unless and until it is exchanged in whole or in part for the individual Debt
Securities represented thereby, a Global Security may not be transferred except
as a whole by the Depositary for such Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by the Depositary or any nominee to a successor
Depositary or any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series
of Debt Securities and certain limitations and restrictions relating to a series
of Bearer Securities in the form of one or more Global Securities, will be
described in the Prospectus Supplement relating to such series. BANC ONE
anticipates that the following provisions will generally apply to depositary
arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary. Such accounts shall be designated by the
underwriters or agents with respect to such Debt Securities. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ("participants") or persons that may
hold interests through participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable Depositary or its
nominee (with respect to interests of participants) and the records of
participants (with respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have any of
the individual Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities of such series in definitive form and will
not be considered the owners or holders thereof under the Indenture governing
such Debt Securities.
Payments of principal of, premium, if any, and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. Neither BANC ONE, the Trustee for such Debt
Securities, any Paying Agent, nor the Note Registrar for such Debt Securities
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Subject to certain restrictions relating to Bearer Securities, BANC ONE
expects that the Depositary for a series of Debt Securities or its nominee, upon
receipt of any payment of principal, premium or interest in respect of a
permanent Global Security representing any of such Debt Securities will credit
participants' accounts immediately with payments in amounts proportionate to
their respective beneficial interests in the principal amount of such Global
Security for such Debt Securities as shown on the records of such Depositary or
its nominee. BANC ONE also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name". Such payments will be the responsibility of such participants.
With respect to owners of beneficial interests in a temporary Global Security
representing Bearer Securities, receipt by such beneficial owners of payments of
principal, premium or interest in respect thereof will be subject to additional
restrictions.
11
<PAGE> 13
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by BANC ONE within 90 days, BANC ONE will issue individual Debt
Securities of such series in definitive form in exchange for the Global Security
representing such series of Debt Securities. In addition, BANC ONE may at any
time and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine not to have
any Debt Securities of a series represented by one or more Global Securities
and, in such event, will issue individual Debt Securities of such series in
definitive form in exchange for the Global Security or Securities representing
such series of Debt Securities. Further, if BANC ONE so specifies with respect
to the Debt Securities of a series, an owner of a beneficial interest in a
Global Security representing Debt Securities of such series may, on terms
acceptable to BANC ONE, the Trustee and the Depositary for such Global Security,
receive Debt Securities of such series in definitive form in exchange for such
beneficial interests, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities. In any such instance, an owner of a
beneficial interest in a Global Security will be entitled to physical delivery
in definitive form of Debt Securities of the series represented by such Global
Security equal in principal amount to such beneficial interest and to have such
Debt Securities registered in its name (if the Debt Securities of such series
are issuable as Registered Securities). Debt Securities of such series so issued
in definitive form will be issued (a) as Registered Securities in denominations,
unless otherwise specified by BANC ONE, of $1,000 and integral multiples thereof
if the Debt Securities of such series are issuable as Registered Securities, (b)
as Bearer Securities in the denomination, unless otherwise specified by BANC
ONE, of $5,000 if the Debt Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, if the Debt
Securities of such series are issuable in either form. Certain restrictions may
apply, however, on the issuance of a Bearer Security in definitive form in
exchange for an interest in a Global Security.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and any interest on Registered Securities will
be made at the office of such Paying Agent or Paying Agents as BANC ONE may
designate from time to time, except that, at the option of BANC ONE, payment of
any interest may be made (i) by check mailed to the address of the person
entitled thereto as such address shall appear in the applicable Note Register or
(ii) by wire transfer to an account maintained by the person entitled thereto as
specified in the applicable Note Register. Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of interest on
Registered Securities will be made to the person in whose name such Debt
Security is registered at the close of business on the Regular Record Date for
such payment.
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and any interest on Bearer Securities will be
payable, subject to any applicable laws and regulations, at the offices of such
Paying Agents outside the United States as BANC ONE may designate from time to
time, at the option of the Holder, by check or by transfer to an account
maintained by the payee with a bank located outside the United States. Unless
otherwise indicated in an applicable Prospectus Supplement, payment of interest
on Bearer Securities will be made only against surrender of the coupon relating
to such Interest Payment Date. No payment with respect to any Bearer Security
will be made at any office or agency of BANC ONE in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States.
CONSOLIDATION, MERGER OR SALE OF ASSETS
Each Indenture provides that BANC ONE may, without the consent of the
holders of any of the Debt Securities outstanding under the applicable
Indenture, consolidate with, merge into or transfer its assets substantially as
an entirety to any person, provided that (i) any such successor assumes BANC
ONE's obligations on the applicable Debt Securities and under the applicable
Indenture, (ii) after giving effect thereto, no Event of Default (as defined in
the Senior Indenture) in the case of the Senior Securities, or Default (as
defined in the Subordinated Indenture) in the case of the Subordinated
Securities, shall have
12
<PAGE> 14
happened and be continuing and (iii) certain other conditions under the
applicable Indenture are met. Accordingly, any such consolidation, merger or
transfer of assets substantially as an entirety, which meets the conditions
described above, would not create any Event of Default or Default which would
entitle holders of the Debt Securities, or the Trustee on their behalf, to take
any of the actions described below under "Senior Securities -- Events of
Default, Waivers, etc." or "Subordinated Securities -- Events of Default,
Waivers, etc."
LEVERAGED AND OTHER TRANSACTIONS
Each Indenture and the Debt Securities do not contain, among other things,
provisions which would afford holders of the Debt Securities protection in the
event of a highly leveraged or other transaction involving BANC ONE which could
adversely affect the holders of Debt Securities.
MODIFICATION OF THE INDENTURE; WAIVER OF COVENANTS
Each Indenture provides that, with the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding Debt Securities
of each affected series, modifications and alterations of such Indenture may be
made which affect the rights of the holders of such Debt Securities; provided,
however, that no such modification or alteration may be made without the consent
of the holder of each Debt Security so affected which would, among other things,
(i) change the maturity of the principal of, or of any installment of interest
(or premium, if any) on, any Debt Security issued pursuant to such Indenture, or
reduce the principal amount thereof or any premium thereon, or change the method
of calculation of interest or the currency of payment of principal or interest
(or premium, if any) on, or reduce the minimum rate of interest thereon, or
impair the right to institute suit for the enforcement of any such payment on or
with respect to any such Debt Security, or reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof; or (ii) reduce the above-stated percentage
in principal amount of outstanding Debt Securities required to modify or alter
such Indenture.
REGARDING CHASE
Chase is the Trustee under both the Senior Indenture and the Subordinated
Indenture. Chase Manhattan Bank Delaware, an affiliate of Chase, serves as
trustee under the indenture with BANC ONE relating to BANC ONE's 9.875%
Subordinated Notes due March 1, 2009. In addition, BANC ONE maintains other
banking relationships with Chase.
SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of BANC ONE and
will rank pari passu with all outstanding unsecured senior indebtedness of BANC
ONE.
EVENTS OF DEFAULT, WAIVERS, ETC.
An Event of Default with respect to Senior Securities of any series is
defined in the Senior Indenture as (i) default in the payment of principal of or
premium, if any, on any of the Senior Securities of that series outstanding
under the Senior Indenture when due; (ii) default in the payment of interest on
any of the Senior Securities of that series outstanding under the Senior
Indenture when due and continuance of such default for 30 days; (iii) default in
the performance of any other covenant of BANC ONE in the Senior Indenture with
respect to Senior Securities of such series and continuance of such default for
90 days after written notice; (iv) certain events of bankruptcy, insolvency or
reorganization of BANC ONE and (v) any other event that may be specified in a
Prospectus Supplement with respect to any series of Senior Securities.
If an Event of Default with respect to any series of Senior Securities for
which there are Senior Securities outstanding under the Senior Indenture occurs
and is continuing, either the applicable Trustee or the holders of not less than
25% in aggregate principal amount of the Senior Securities of such series
outstanding may declare the principal amount (or if such Senior Securities are
Original Issue Discount Securities, such portion
13
<PAGE> 15
of the principal amount as may be specified in the terms of that series) of all
Senior Securities of that series to be immediately due and payable. The holders
of a majority in aggregate principal amount of the Senior Securities of any
series outstanding under the Senior Indenture may waive an Event of Default
resulting in acceleration of such Senior Securities, but only if all Events of
Default with respect to Senior Securities of such series have been remedied and
all payments due (other than those due as a result of acceleration) have been
made. If an Event of Default occurs and is continuing, the applicable Trustee
may, in its discretion, and at the written request of holders of not less than a
majority in aggregate principal amount of the Senior Securities of any series
outstanding under the Senior Indenture and upon reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request
and subject to certain other conditions set forth in the Senior Indenture shall,
proceed to protect the rights of the holders of all the Senior Securities of
such series. Prior to acceleration of maturity of the Senior Securities of any
series outstanding under the Senior Indenture, the holders of a majority in
aggregate principal amount of such Senior Securities may waive any past default
under the Senior Indenture except a default in the payment of principal of,
premium, if any, or interest on the Senior Securities of such series.
The Senior Indenture provides that upon the occurrence of an Event of
Default specified in clauses (i) or (ii) of the first paragraph under "-- Events
of Defaults, Waivers, etc.", BANC ONE will, upon demand of the applicable
Trustee, pay to it, for the benefit of the holder of any such Senior Security,
the whole amount then due and payable on such Senior Securities for principal,
premium, if any, and interest. The Senior Indenture further provides that if
BANC ONE fails to pay such amount forthwith upon such demand, such Trustee may,
among other things, institute a judicial proceeding for the collection thereof.
The Senior Indenture also provides that notwithstanding any other provision
of the Senior Indenture, the holder of any Senior Security of any series shall
have the right to institute suit for the enforcement of any payment of principal
of, premium, if any, and interest on such Senior Securities when due and that
such right shall not be impaired without the consent of such holder.
BANC ONE is required to file annually with the applicable Trustee a written
statement of officers as to the existence or non-existence of defaults under the
Senior Indenture or the Senior Securities.
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of BANC
ONE and will be subject to the subordination provisions described below.
SUBORDINATION
It is the intent of BANC ONE that Subordinated Securities issued by BANC
ONE be treated as capital for calculation of regulatory capital ratios. The
Federal Reserve has issued interpretations of its capital regulations
indicating, among other things, that subordinated debt of bank holding companies
issued on or after September 4, 1992, is includable in capital for calculation
of regulatory capital ratios only if the subordination of the debt meets certain
criteria and if the debt may be accelerated only for bankruptcy, insolvency and
similar matters (the "Subordination Interpretations"). Accordingly, the
Subordinated Indenture contains subordination and acceleration provisions for
the Subordinated Securities which are intended to be consistent with the
Subordination Interpretations. Subordinated debt of BANC ONE issued after
September 4, 1992, which meets the Subordination Interpretations are referred to
herein as "New Subordinated Securities". Unless otherwise specified in the
Prospectus Supplement relating to a particular series of Subordinated Securities
offered thereby, Subordinated Securities offered pursuant to this Prospectus
will constitute New Subordinated Securities. See "Events of Default, Defaults,
Waivers, etc." below.
Upon any distribution of assets of BANC ONE upon any dissolution, winding
up, liquidation or reorganization, the payment of the principal of, premium, if
any, and interest on the Subordinated Securities is to be subordinated in right
of payment, to the extent provided in the Subordinated Indenture, to the prior
payment in full of all Senior Indebtedness. In certain events of bankruptcy or
insolvency, the payment of the principal of and interest on the Subordinated
Securities (and other New Subordinated Securities) will, to the
14
<PAGE> 16
extent provided in the Subordinated Indenture, also be effectively subordinated
in right of payment to the prior payment in full of all General Obligations (as
defined below).
Upon any distribution of assets of BANC ONE upon any dissolution, winding
up, liquidation or reorganization, the holders of Senior Indebtedness will first
be entitled to receive payment in full of all amounts due or to become due
before the holders of the Subordinated Securities will be entitled to receive
any payment in respect of the principal of, premium, if any, or interest on the
Subordinated Securities. If upon any such payment or distribution of assets
there remain, after giving effect to such subordination provisions in favor of
the holders of Senior Indebtedness, any amounts of cash, property or securities
available for payment or distribution in respect of the New Subordinated
Securities ("Excess Proceeds") and if, at such time, any creditors in respect of
General Obligations have not received payment in full of all amounts due or to
become due on or in respect of such General Obligations, then such Excess
Proceeds shall first be applied to pay or provide for the payment in full of
such General Obligations before any payment or distribution may be made in
respect of the New Subordinated Securities.
In addition, no payment may be made of the principal of, premium, if any,
or interest on the Subordinated Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Subordinated Securities,
at any time when (i) there is a default in the payment of the principal of,
premium, if any, interest on or otherwise in respect of any Senior Indebtedness
or (ii) any event of default with respect to any Senior Indebtedness has
occurred and is continuing, or would occur as a result of such payment on the
Subordinated Securities or any redemption, retirement, purchase or other
acquisition of any of the Subordinated Securities, permitting the holders of
such Senior Indebtedness to accelerate the maturity thereof. Except as described
above, the obligation of BANC ONE to make payment of the principal of, premium,
if any, or interest on the Subordinated Securities will not be affected.
By reason of such subordination in favor of the holders of Senior
Indebtedness, in the event of a distribution of assets upon any dissolution,
winding up, liquidation or reorganization, certain creditors of BANC ONE who are
not holders of Senior Indebtedness or of the Subordinated Securities may recover
less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than holders of the Subordinated Securities. By reason of the
obligation of the holders of New Subordinated Securities to pay over any Excess
Proceeds to creditors in respect of General Obligations, in the event of a
distribution of assets upon any dissolution, winding up, liquidation or
reorganization, holders of Old Subordinated Securities (as defined herein) may
recover less, ratably, than creditors in respect of General Obligations and may
recover more, ratably, than the holders of New Subordinated Securities.
Subject to payment in full of all Senior Indebtedness, the holders of
Subordinated Securities will be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of BANC ONE applicable to Senior Indebtedness. Subject to payment in
full of all General Obligations, the holders of the New Subordinated Securities
will be subrogated to the rights of the creditors in respect of General
Obligations to receive payments or distributions of cash, property or securities
of BANC ONE applicable to such creditors in respect of General Obligations.
Senior Indebtedness is defined in the Subordinated Indenture as the
principal of, premium, if any, and interest on (i) all of BANC ONE's
indebtedness for money borrowed, other than the subordinated securities issued
under the Subordinated Indenture, BANC ONE's 7.25% Subordinated Notes Due August
1, 2002, BANC ONE's 8.74% Subordinated Notes Due September 15, 2003, BANC ONE's
7.00% Subordinated Notes due July 15, 2005 (the "July 2005 Notes"), BANC ONE's
9.875% Subordinated Notes Due March 1, 2009, BANC ONE's 10.00% Subordinated
Notes Due August 15, 2010, BANC ONE's 7.75% Subordinated Debentures due on July
15, 2025 (the "July 2025 Debentures") and BANC ONE's 7.625% Subordinated
Debentures due October 15, 2026 (the "October 2026 Debentures") (collectively,
all of the foregoing notes and debentures are hereinafter referred to as the
"Existing Subordinated Indebtedness"), whether outstanding on the date of
execution of the Subordinated Indenture or thereafter created, assumed or
incurred, except such indebtedness as is by its terms expressly stated to be not
superior in right of payment to the subordinated securities issued under the
Subordinated Indenture or the Existing Subordinated Indebtedness or to rank pari
passu with the subordinated securities issued under the Subordinated Indenture
or the Existing Subordinated
15
<PAGE> 17
Indebtedness; and (ii) any deferrals, renewals or extensions of any such Senior
Indebtedness. The term "indebtedness for money borrowed" as used in the prior
sentence includes, without limitation, any obligation of, or any obligation
guaranteed by, BANC ONE for the repayment of borrowed money, whether or not
evidenced by bonds, debentures, notes or other written instruments, and any
deferred obligation for the payment of the purchase price of property or assets.
There is no limitation on the issuance of additional Senior Indebtedness of BANC
ONE.
The July 2005 Notes, the July 2025 Debentures and the October 2026
Debentures all constitute New Subordinated Securities; all other Existing
Subordinated Indebtedness constitutes Old Subordinated Securities.
The Subordinated Securities rank and will rank pari passu with the Existing
Subordinated Indebtedness, subject to the obligations of the holders of
Subordinated Securities (and holders of other New Subordinated Securities) to
pay over any Excess Proceeds to creditors in respect of General Obligations.
Thus, in the event of a distribution of assets of BANC ONE upon any dissolution,
winding up, liquidation or reorganization, the holders of the New Subordinated
Securities (including holders of the Subordinated Securities offered hereby) may
receive less, ratably, than holders of Old Subordinated Securities.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Subordinated Securities offered thereby, "General
Obligations" means all obligations of BANC ONE to make payment on account of
claims in respect of derivative products such as interest and foreign exchange
rate contracts, commodity contracts and similar arrangements, other than (i)
obligations on account of Senior Indebtedness, (ii) obligations on account of
indebtedness for money borrowed ranking pari passu with or subordinate to the
Subordinated Securities and (iii) obligations which by their terms are expressly
stated not to be superior in right of payment to the Subordinated Securities or
to rank on parity with the Subordinated Securities; provided, however, that
notwithstanding the foregoing, in the event that any rule, guideline or
interpretation promulgated or issued by the Federal Reserve (or other competent
regulatory agency or authority), as from time to time in effect, establishes or
specifies criteria for the inclusion in regulatory capital of subordinated debt
of a bank holding company requiring that such subordinated debt be subordinated
to obligations to creditors in addition to those set forth above, then the term
"General Obligations" shall also include such additional obligations to
creditors, as from time to time in effect pursuant to such rules, guidelines or
interpretations. For purposes of this definition, "claim" shall have the meaning
assigned thereto in Section 101(4) of the Bankruptcy Code of 1978, as amended to
the date of the Subordinated Indenture.
LIMITED RIGHTS OF ACCELERATION
Unless otherwise specified in the Prospectus Supplement relating to any
series of Subordinated Securities, payment of principal of the Subordinated
Securities may be accelerated only in case of the bankruptcy, insolvency or
reorganization of BANC ONE. There is no right of acceleration in the case of a
default in the payment of principal of, premium, if any, or interest on the
Subordinated Securities or the performance of any other covenant of BANC ONE in
the Subordinated Indenture. Payment of principal of the Old Subordinated
Securities may be accelerated in the case of the bankruptcy, insolvency or
reorganization of BANC ONE.
EVENTS OF DEFAULT, DEFAULTS, WAIVERS, ETC.
An Event of Default with respect to Subordinated Securities of any series
is defined in the Subordinated Indenture as certain events involving the
bankruptcy, insolvency or reorganization of BANC ONE and any other Event of
Default provided with respect to Subordinated Securities of that series. A
Default with respect to Subordinated Securities of any series is defined in the
Subordinated Indenture as (i) an Event of Default with respect to such series,
(ii) default in the payment of the principal of or premium, if any, on any
Subordinated Security of such series when due, (iii) default in the payment of
interest upon any Subordinated Security of such series when due and the
continuance of such default for a period of 30 days, (iv) default in the
performance of any other covenant or agreement of BANC ONE in the Subordinated
Indenture with respect to Subordinated Securities of such series and continuance
of such default for 90 days after written
16
<PAGE> 18
notice or (v) any other Default provided with respect to Subordinated Securities
of any series. If an Event of Default with respect to any series of Subordinated
Securities for which there are Subordinated Securities outstanding under the
Subordinated Indenture occurs and is continuing, either the applicable Trustee
or the holders of not less than 25% in aggregate principal amount of the
Subordinated Securities of such series may declare the principal amount (or if
such Subordinated Securities are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all Subordinated Securities of that series to be immediately due and payable.
The holders of a majority in aggregate principal amount of the Subordinated
Securities of any series outstanding under the Subordinated Indenture may waive
an Event of Default resulting in acceleration of such Subordinated Securities,
but only if all Defaults have been remedied and all payments due (other than
those due as a result of acceleration) have been made. If a Default occurs and
is continuing, the Trustee may in its discretion, and at the written request of
holders of not less than a majority in aggregate principal amount of the
Subordinated Securities of any series outstanding under the Subordinated
Indenture and upon reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request and subject to
certain other conditions set forth in the Subordinated Indenture shall, proceed
to protect the rights of the holders of all the Subordinated Securities of such
series. Prior to acceleration of maturity of the Subordinated Securities of any
series outstanding under the Subordinated Indenture, the holders of a majority
in aggregate principal amount of such Subordinated Securities may waive any past
default under the Subordinated Indenture except a default in the payment of
principal of, premium, if any, or interest on the Subordinated Securities of
such series.
The Subordinated Indenture provides that in the event of a Default
specified in clauses (ii) or (iii) of the immediately preceding paragraph in
payment of principal of, premium, if any, or interest on any Subordinated
Security of any series, BANC ONE will, upon demand of the applicable Trustee,
pay to it, for the benefit of the holder of any such Subordinated Security, the
whole amount then due and payable on such Subordinated Security for principal,
premium, if any, and interest. The Subordinated Indenture further provides that
if BANC ONE fails to pay such amount forthwith upon such demand, the applicable
Trustee may, among other things, institute a judicial proceeding for the
collection thereof.
The Subordinated Indenture also provides that notwithstanding any other
provision of the Subordinated Indenture, the holder of any Subordinated Security
of any series shall have the right to institute suit for the enforcement of any
payment of principal of, premium, if any, and interest on such Subordinated
Security on the respective Stated Maturities (as defined in the Subordinated
Indenture) expressed in such Subordinated Security and that such right shall not
be impaired without the consent of such holder.
BANC ONE is required to file annually with the applicable Trustee a written
statement of officers as to the existence or non-existence of defaults under the
Subordinated Indenture or the Subordinated Securities.
PLAN OF DISTRIBUTION
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices (which may be changed
from time to time), at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Each
Prospectus Supplement will describe the method of distribution of the Debt
Securities offered therein.
BANC ONE may sell Debt Securities directly, through agents designated from
time to time, through underwriting syndicates led by one or more managing
underwriters or through one or more underwriters acting alone. Each Prospectus
Supplement will set forth the terms of the Debt Securities to which such
Prospectus Supplement relates, including the name or names of any underwriters
or agents with whom BANC ONE has entered into arrangements with respect to the
sale of such Debt Securities, the public offering or purchase price of such Debt
Securities and the net proceeds to BANC ONE from such sale, any underwriting
discounts and other items constituting underwriters' compensation, any discounts
and commissions allowed or paid to dealers, if any, any commissions allowed or
paid to agents, and the securities exchange or exchanges, if any, on which such
Debt Securities will be listed. Dealer trading may take place in certain of the
Debt Securities, including Debt Securities not listed on any securities
exchange.
17
<PAGE> 19
Securities may be purchased to be reoffered to the public through
underwriting syndicates led by one or more managing underwriters, or through one
or more underwriters acting alone. The underwriter or underwriters with respect
to each underwritten offering of Debt Securities will be named in the Prospectus
Supplement relating to such offering and, if an underwriting syndicate is used,
the managing underwriter or underwriters will be set forth on the cover page of
such Prospectus Supplement. Unless otherwise set forth in the applicable
Prospectus Supplement, the obligations of the underwriters to purchase the Debt
Securities will be subject to certain conditions precedent and each of the
underwriters with respect to a sale of Debt Securities will be obligated to
purchase all of its Debt Securities if any are purchased. Any initial public
offering price and any discounts or concession allowed or reallowed or paid to
dealers may be changed from time to time.
Debt Securities may be offered and sold by BANC ONE through agents
designated by BANC ONE from time to time. Any agent involved in the offer and
sale of any Debt Securities will be named, and any commissions payable by BANC
ONE to such agent will be set forth, in the Prospectus Supplement relating to
such offering. Unless otherwise indicated in such Prospectus Supplement, any
such agent will be acting on a reasonable efforts basis for the period of its
appointment.
Offers to purchase Debt Securities may be solicited directly by BANC ONE
and sales thereof may be made by BANC ONE directly to institutional investors or
others who may be deemed to be underwriters within the meaning of the Securities
Act with respect to any resale thereof. The terms of any such sales will be
described in the Prospectus Supplement relating thereto. BANC ONE may also issue
contracts under which the counterparty may be required to purchase Debt
Securities. Such contracts would be issued with Debt Securities in amounts, at
prices and on terms to be set forth in a Prospectus Supplement.
The anticipated place and time of delivery of Debt Securities will be set
forth in the applicable Prospectus Supplement.
If so indicated in the applicable Prospectus Supplement, BANC ONE will
authorize underwriters or agents to solicit offers by certain institutions to
purchase Debt Securities from BANC ONE pursuant to delayed delivery contracts
providing for payment and delivery at a future date. Institutions with which
such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
BANC ONE. Unless otherwise set forth in the applicable Prospectus Supplement,
the obligations of any purchaser under any such contract will not be subject to
any conditions except that (i) the purchase of the Debt Securities shall not at
the time of delivery be prohibited under the laws of the jurisdiction to which
such purchaser is subject, and (ii) if the Debt Securities are also being sold
to underwriters acting as principals for their own account, the underwriters
shall have purchased such Debt Securities not sold for delayed delivery. The
underwriters and such other persons will not have any responsibility in respect
of the validity or performance of such contracts.
Any underwriter or agent participating in the distribution of the Debt
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Debt Securities so offered and sold and any discounts or
commissions received by them from BANC ONE and any profit realized by them on
the sale or resale of the Debt Securities may be deemed to be underwriting
discounts and commissions under the Securities Act.
Underwriters and agents may be entitled, under agreements entered into with
BANC ONE, to indemnification by BANC ONE against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which such underwriters or agents may be required to make in respect
thereof.
Certain of any such underwriters and agents including their associates, may
be customers of, engage in transactions with and perform services for, BANC ONE
and its subsidiaries in the ordinary course of business. An affiliate of BANC
ONE may from time to time act as an agent or underwriter in connection with the
sale of the Securities to the extent permitted by applicable law. The
participation of such affiliate in the offer and
18
<PAGE> 20
sale of the Securities will comply with Rule 2720 of the Conduct Rules of the
National Association of Securities Dealers, Inc. regarding the offer and sale of
securities of an affiliate.
This Prospectus and related Prospectus Supplements may be used by an
affiliate of BANC ONE in connection with offers and sales related to secondary
market transactions in Securities. Such affiliate, to the extent permitted by
law, may act as principal or agent in such transactions. Such sales will be made
at prices related to prevailing market prices at the time of sale.
LEGAL OPINIONS
Certain legal matters relating to the Debt Securities offered hereby will
be passed upon for BANC ONE by Steven Alan Bennett, Senior Vice President and
General Counsel of BANC ONE, and for any underwriters, selling agents and
certain other purchasers by Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth
Avenue, New York, New York 10019. Mr. Bennett owns a number of shares of BANC
ONE common stock and holds options to purchase additional shares of BANC ONE
common stock. Cravath, Swaine & Moore performs legal services for BANC ONE from
time to time.
EXPERTS
The consolidated financial statements of BANC ONE and its subsidiaries,
included in the Annual Report on Form 10-K of BANC ONE for the fiscal year ended
December 31, 1995, as amended by Form 10-K/A filed June 27, 1996, have been
audited by Coopers & Lybrand L.L.P., independent accountants, as set forth in
their report dated February 21, 1996 accompanying such financial statements, and
are incorporated herein by reference in reliance upon the report of such firm,
which report is given upon their authority as experts in accounting and
auditing.
Any financial statements and schedules hereafter incorporated by reference
in the registration statement of which this prospectus is a part that have been
audited and are the subject of a report by independent accountants will be so
incorporated by reference in reliance upon such reports and upon the authority
of such firms as experts in accounting and auditing to the extent covered by
consents filed with the Commission.
19
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC Filing Fee........................................................... $ 727,273
Rating Agency Fees....................................................... 420,000*
Blue Sky Fees and Expenses (including fees and expenses of counsel)...... 20,000*
Legal Fees and Expenses.................................................. 75,000*
Trustees' Fees and Expenses.............................................. 50,000*
Printing and Engraving Expenses.......................................... 75,000*
Accounting Fees and Expenses............................................. 160,000*
Miscellaneous Expenses................................................... 10,000*
-----------
Total.......................................................... $1,537,273*
===========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1701.13(E) of the Ohio General Corporation Law sets forth
provisions which define the extent to which a corporation may indemnify
directors, officers and employees. Those provisions have been adopted by the
Registrant in Article V of Registrant's Code of Regulations which provide for
the indemnification or the purchase of insurance for the directors, officers,
employees and agents of the Registrant to afford protection and reimbursement
for such persons acting in their capacities as directors, officers, employees or
agents of the Registrant, provided each such person acted in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the Registrant and which such person had no reason to believe was
unlawful.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ----------- ----------------------------------------------------------------------------------
<S> <C>
1.1 Form of underwriting agreement (incorporated by reference to Exhibit 1.1 to the
Registrant's Registration Statement on Form S-3, File No. 33-60807).
1.2 Form of distribution agreement.
4.1 Form of Senior Indenture, including form of Senior Debt Securities.
4.2 Form of Subordinated Indenture, including form of Subordinated Debt Securities.
5 Opinion of Steven Alan Bennett, Esq., Senior Vice President and General Counsel of
the Registrant, including consent.
12 Computation of Ratio of Earnings to Fixed Charges (incorporated by reference to
Exhibit 12 to the Quarterly Report of the Registrant on Form 10-Q for the quarter
ended September 30, 1996).
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Steven Alan Bennett, Esq., Senior Vice President and General Counsel of
the Registrant (included in Exhibit 5).
24 Powers of Attorney (included elsewhere in Part II of this Registration Statement).
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank under the Trust
Indenture Act of 1939 with respect to Subordinated Debt Securities.
25.2 Form T-1 Statement of Eligibility of The Chase Manhattan Bank under the Trust
Indenture Act of 1939 with respect to Senior Debt Securities.
</TABLE>
II-1
<PAGE> 22
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 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% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement); and (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement. Provided, however, that (1)(i)
and (1)(ii) do not apply if the information required to be included in a
post-effective amendment by those items is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference to 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 registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) 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 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) 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
under Item 15 above or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted
against the Registrant by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless 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 Act and will be governed by the final adjudication of such
issue.
II-2
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing this Registration Statement and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbus, State of Ohio, on February 26, 1997.
BANC ONE CORPORATION
By: /s/ ROMAN J. GERBER
------------------------------------
Roman J. Gerber
Executive Vice President
POWER OF ATTORNEY
We, the undersigned officers and directors of BANC ONE CORPORATION, hereby
severally constitute and appoint William P. Boardman, Roman J. Gerber, William
C. Leiter, George R.L. Meiling or Michael J. McMennamin and each of them our
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for us and in our stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement and all documents relating thereto, and any subsequent
registration statement filed by BANC ONE CORPORATION pursuant to Rule 462(b) of
the Securities Act of 1933, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
necessary or advisable to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
WITNESS our hands and common seal on the dates set forth below.
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 B. MCCOY Chairman of the Board February 26, 1997
- --------------------------------------------- (Principal Executive
John B. McCoy Officer and Director)
/s/ RICHARD J. LEHMANN President and Director February 26, 1997
- ---------------------------------------------
Richard J. Lehmann
/s/ MICHAEL J. MCMENNAMIN Executive Vice President February 26, 1997
- --------------------------------------------- (Principal Financial
Michael J. McMennamin Officer)
/s/ BOBBY L. DOXEY Controller (Principal February 26, 1997
- --------------------------------------------- Accounting Officer)
Bobby L. Doxey
/s/ CHARLES E. EXLEY Director February 26, 1997
- ---------------------------------------------
Charles E. Exley
/s/ E. GORDON GEE Director February 26, 1997
- ---------------------------------------------
E. Gordon Gee
</TABLE>
II-3
<PAGE> 24
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------------- -------------------
<S> <C> <C>
/s/ JOHN R. HALL Director February 26, 1997
- ---------------------------------------------
John R. Hall
/s/ LABAN P. JACKSON, JR. Director February 26, 1997
- ---------------------------------------------
Laban P. Jackson, Jr.
/s/ JOHN G. MCCOY Director February 26, 1997
- ---------------------------------------------
John G. McCoy
/s/ THEKLA R. SHACKELFORD Director February 26, 1997
- ---------------------------------------------
Thekla R. Shackelford
/s/ ALEX SHUMATE Director February 26, 1997
- ---------------------------------------------
Alex Shumate
/s/ FREDERICK P. STRATTON, JR. Director February 26, 1997
- ---------------------------------------------
Frederick P. Stratton, Jr.
/s/ ROBERT D. WALTER Director February 26, 1997
- ---------------------------------------------
Robert D. Walter
Director
- ---------------------------------------------
Bennett Dorrance
</TABLE>
II-4
<PAGE> 1
BANC ONE CORPORATION
$2,000,000,000
MEDIUM-TERM NOTES
U.S. DISTRIBUTION AGREEMENT
February , 1997
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
Banc One Capital Corporation
15 East Gay Street
Columbus, OH 43215
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, NY
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Lazard Freres & Co. LLC
30 Rockefeller Plaza
New York, NY 10020
Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285-2400
UBS Securities LLC
299 Park Avenue
New York, NY 10171
Ladies and Gentlemen:
BANC ONE CORPORATION, an Ohio corporation (the "Company"), proposes to
issue and sell from time to time its Medium-Term Notes (the "Securities") in an
aggregate amount up to $2,000,000,000 and agrees with each of you, individually,
an "Agent", and collectively, the "Agents", as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. This Distribution
Agreement shall not be construed to create either
<PAGE> 2
an obligation on the part of the Company to sell any Securities or an obligation
of any of the Agents to purchase Securities as principal.
The Securities will be issued under either a senior indenture or a
subordinated indenture, each dated as of February , 1997 (the "Indentures"),
between the Company and The Chase Manhattan Bank, as Trustee (the "Trustee").
The Securities shall have the maturity ranges, interest rates, if any,
redemption provisions and other terms set forth in the Prospectus referred to
below as it may be amended or supplemented from time to time. The Securities
will be issued, and the terms and rights thereof established, from time to time
by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) Two registration statements on Form S-3 (File Nos.
33-64195 and 333-......... in respect of the Securities have been filed
with the Securities and Exchange Commission (the "Commission"); such
registration statements and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to such Agent,
excluding exhibits to such registration statements, but including all
documents incorporated by reference in the prospectus included in the
latest registration statement, have been declared effective by the
Commission in such form; no other document with respect to such
registration statements or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission
(other than the prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Act, each in the form
heretofore delivered to the Agents); and no stop order suspending the
effectiveness of any such registration statements has been issued and
no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statements or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Act, are hereinafter
called a "Preliminary Prospectus"; the various parts of such
registration statements, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statements at the time such part of the registration
statement became effective but excluding Form T-1, each as amended at
the time such part of the registration statements became effective, is
hereinafter collectively called the "Registration Statement"; the
prospectus (including, if applicable, any prospectus supplement)
relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, is hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular issue of the
Securities (a "Pricing Supplement"), shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the Prospectus as
amended or supplemented (including by the applicable Pricing Supplement
filed in accordance with Section 4(a) hereof) in relation to Securities
to be sold pursuant to this Agreement, in the form filed or transmitted
for filing with the Commission pursuant to Rule 424(b) under the Act
and in accordance with Section 4(a)
2
<PAGE> 3
hereof, including any documents incorporated by reference therein as of
the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an 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;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by any
Agent expressly for use in the Prospectus as amended or supplemented to
relate to a particular issuance of Securities, or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus;
(e) The issue and sale of the Securities, the compliance by
the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any Terms Agreement, and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Articles of
Incorporation, as amended, or the Code of Regulations of the Company or
any statute or any order, rule or regulation of any court or
governmental agency or body
3
<PAGE> 4
having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification
of or with any court or governmental agency or body is required for the
solicitation of offers to purchase Securities, the issue and sale of
the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any Terms Agreement or the
Indenture, except such as have been, or will have been prior to the
Commencement Date (as defined in Section 3 hereof), obtained under the
Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the
Company and with purchases of Securities by such Agent as principal, as
the case may be, in each case in the manner contemplated hereby;
(f) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property of the Company
or any of its subsidiaries is subject, which, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(g) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any debt securities of
the Company (other than such Securities) that shall have been issued
and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement;
and
(h) Each subsidiary of the Company that is a national banking
association holds a valid Certificate of Authority from the Comptroller
of the Currency of the United States of America (the "Comptroller") to
do business as a national banking association under the laws of the
United States and is not in arrears with respect to reports required to
be filed with the Comptroller; and each other bank subsidiary of the
Company has been duly organized and is validly existing as a bank in
good standing under the laws of its jurisdiction of organization and is
not in arrears with respect to reports required to be filed with
applicable state and Federal bank regulators.
2. (a) On the basis of the representations and warranties herein
contained, and 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 and receive
offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from
time to time. So long as this Agreement shall remain in effect with
respect to any Agent, the Company shall not, without the consent of
such Agent, solicit or accept offers to purchase, or sell, any debt
securities with a maturity at the time of original issuance of 9 months
or more except pursuant to this Agreement, any Terms Agreement or
except pursuant to a private placement not constituting a public
offering under the Act or except in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities.
However, the Company reserves the right to sell, and may solicit and
accept offers to purchase, Securities directly on its own behalf in
transactions with persons other than broker-dealers, and, in the case
of any such sale not resulting from a solicitation made by any Agent,
no commission will be payable with respect to such sale. The Company
also reserves the right to offer Securities for sale otherwise than to
or through an Agent; provided, however, that so long as this
4
<PAGE> 5
Agreement is in effect the Company will not appoint any other agent for
the purpose of soliciting purchases of the Securities on a continuous
basis. It is understood, however, that if from time to time the Company
is approached by a prospective agent offering to solicit a specific
purchase of Securities, the Company may engage such agent with respect
to such specific purchase, provided that (i) such agent agrees to be
bound by or subject to the applicable terms of this Agreement
(including the same commission schedule as set forth in this Section
2(a)) and (ii) the Agents are given notice of such purchase promptly,
including the terms thereof and a copy of the agreement setting forth
the terms of engagement of such agent by the Company, in each case
after the purchase is agreed to. These provisions shall not limit
Section 4(f) hereof or any similar provision included in any Terms
Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
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 the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed. During such period, the
Company shall not be required to comply with the provisions of Sections 4(h),
4(i), 4(j) and 4(k). Upon advising the Agents that such solicitation may be
resumed, however, the Company shall simultaneously provide the documents
required to be delivered by Sections 4(h), 4(i), 4(j) and 4(k), and the Agents
shall have no obligation to solicit offers to purchase the Securities until such
documents have been received by the Agents. In addition, any failure by the
Company to comply with its obligations hereunder, including without limitation
its obligations to deliver the documents required by Sections 4(h), 4(i), 4(j)
and 4(k), shall automatically terminate the Agents' obligations hereunder,
including without limitation its obligations to solicit offers to purchase the
Securities hereunder as agent or to purchase Securities hereunder as principal.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following applicable
percentage of the principal amount of such Security sold:
<TABLE>
<CAPTION>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
<S> <C>
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
</TABLE>
5
<PAGE> 6
<TABLE>
<CAPTION>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
<S> <C>
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years to 30 years
From more than 30 years to less than 50 years
50 years and more
</TABLE>
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall otherwise agree) a Terms Agreement which
will provide for the sale of such Securities to, and the purchase
thereof by, such Agent; a Terms Agreement may also specify certain
provisions relating to the reoffering of such Securities by such Agent;
the commitment of any Agent to purchase Securities as principal,
whether pursuant to any Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms and
conditions herein set forth; each Terms Agreement shall specify the
principal amount of Securities to be purchased by any Agent pursuant
thereto, the price to be paid to the Company for such Securities, any
provisions relating to rights of, and default by, underwriters acting
together with such Agent in the reoffering of the Securities and the
time and date and place of delivery of and payment for such Securities;
and such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates
pursuant to Section 4 hereof. Each Agent proposes to offer Securities
purchased by it as principal for sale at prevailing market prices or
prices related thereto at the time of sale, which may be equal to,
greater than or less than the price at which such Securities are
purchased by such Agent from the Company.
For each sale of Securities to an Agent as principal that is
not made pursuant to a Terms Agreement, the procedural details relating
to the issue and delivery of such Securities and payment therefor shall
be as set forth in the Administrative Procedure. For each such sale of
Securities to an Agent as principal that is not made pursuant to a
Terms Agreement, the Company agrees to pay such Agent a commission (or
grant an equivalent discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities
to be purchased by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is
referred to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security
denominated in a currency other than U.S. dollars, as agent, directly
or indirectly, 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 Security in, or to residents of, the
country issuing such currency, except as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Cravath, Swaine & Moore, New York, New York, 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 Securities is commenced or on which any Terms
Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
6
<PAGE> 7
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which
shall be disapproved by any Agent promptly after reasonable notice
thereof or (B) after the date of any Terms Agreement or other agreement
by an Agent to purchase Securities as principal and prior to the
related Time of Delivery which shall be disapproved by any Agent party
to such Terms Agreement or so purchasing as principal promptly after
reasonable notice thereof; (ii) to prepare, with respect to any
Securities to be sold through or to such Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Securities in a
form previously approved by such Agent and to file such Pricing
Supplement pursuant to Rule 424(b)(3) under the Act not later than the
close of business of the Commission on the fifth business day after the
date on which such Pricing Supplement is first used (or the business
day immediately preceding the Time of Delivery if earlier); (iii) to
make no amendment or supplement to the Registration Statement or
Prospectus, other than any Pricing Supplement, at any time prior to
having afforded each Agent a reasonable opportunity to review and
comment thereon; (iv) to file promptly 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 Securities, and
during such same period to advise such Agent, promptly after the
Company receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or
by such Agent) has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amendment or supplement of the Registration Statement or Prospectus or
for additional information; and (v) in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any such prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such
Agent may reasonably request to qualify the Securities for offering and
sale under the securities laws of such jurisdictions as such Agent may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein for as long as may be necessary to complete
the distribution or sale of the Securities; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedure), in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference
therein, all in such quantities as such Agent may reasonably request
from time to time; and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as
principal) and if at such time any event shall have occurred 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 under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or
7
<PAGE> 8
to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify such Agent and request such Agent,
in its capacity as agent of the Company, to suspend solicitation of
offers to purchase Securities from the Company (and, if so notified,
such Agent shall cease such solicitations as soon as practicable, but
in any event not later than one business day later); and if the Company
shall decide to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented, to so advise such Agent
promptly by telephone (with confirmation in writing) and to 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; provided, however, that if during such same
period such Agent continues to own Securities purchased from the
Company by such Agent as principal or such Agent is otherwise required
to deliver a prospectus in respect of transactions in the Securities,
the Company shall promptly prepare and file with the Commission such an
amendment or supplement;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to
such Agent copies of all reports or other communications (financial or
other) furnished to the Company's shareholders, and deliver to such
Agent (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as such Agent may from
time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal
and continuing to and including the later of (i) the termination of the
trading restrictions for the Securities purchased thereunder, as
notified to the Company by such Agent, and (ii) the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which both mature more than 9 months
after such Time of Delivery and are substantially similar to the
Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Company of an offer to
purchase Securities hereunder (including any purchase by such Agent as
principal not pursuant to a Terms Agreement), and each execution and
delivery by the Company of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the representations and
warranties of the Company contained in or made pursuant to this
Agreement are true and correct as of the date of such acceptance or of
such Terms Agreement, as the case may be, as though made at and as of
such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities
relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to
relate to the
8
<PAGE> 9
Registration Statement and the Prospectus as amended and supplemented
relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement), each time a document filed under the Act
or the Exchange Act is incorporated by reference into the Prospectus,
and each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion or opinions by Cravath, Swaine & Moore, counsel
to the Agents, as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish to such counsel such
papers and information as they may reasonably request to enable them to
furnish to such Agent the opinion or opinions referred to in Section
6(b) hereof;
(i) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the Exchange
Act is incorporated by reference into the Prospectus and each time the
Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion
under this Section 4(i) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish or cause to
be furnished forthwith to such Agent a written opinion of the Company's
General Counsel, or other counsel for the Company reasonably
satisfactory to such Agent, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as
the case may be, in form satisfactory to such Agent, to the effect that
such Agent may rely on the opinion of such counsel referred to in
Section 6(c) hereof which was last furnished to such Agent to the same
extent as though it were dated the date of such letter authorizing
reliance (except that the statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date) or, in lieu of such opinion, an
opinion of the same tenor as the opinion of such counsel referred to in
Section 6(c) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date;
(j) That each time the Registration Statement or the
Prospectus shall be amended or supplemented and each time that a
document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, in either case to set forth financial
information included in or derived from the Company's consolidated
financial statements or accounting records, and each time the Company
sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of a letter
under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause the
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 forthwith to
furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as
the case may be, in form satisfactory to such Agent, of the same tenor
as the letter referred to in Section 6(d) hereof but modified to relate
to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company, to the
extent such financial statements and other information are available as
of a date not more than five business days prior to the date of such
letter; provided, however, that, with respect to any financial
information or other matter, such letter may reconfirm as true and
correct at such date as though made at and as of such date, rather than
repeat, statements
9
<PAGE> 10
with respect to such financial information or other matter made in the
letter referred to in Section 6(d) hereof which was last furnished to
such Agent;
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the Exchange
Act is incorporated by reference into the Prospectus and each time the
Company sells Securities to such Agent as principal and the applicable
Terms Agreement specifies the delivery of a certificate under this
Section 4(k) as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to
such sale, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, to the
effect that the statements contained in the certificates referred to in
Section 6(i) 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 and supplemented to such date) or, in
lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(i) but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase
Securities from the Company as the result of an offer to purchase
solicited by such Agent the right to refuse to purchase and pay for
such Securities if, on the related settlement date fixed pursuant to
the Administrative Procedure, any condition set forth in Section 6(a),
6(e), 6(f) or 6(g) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities shall
be substituted, for purposes of this Section 4(l), for the respective
judgments of an Agent with respect to certain matters referred to in
such Sections 6(e) and 6(g), and that such Agent shall have no duty or
obligation whatsoever to exercise the judgment permitted under such
Sections 6(e) and 6(g) on behalf of any such person).
5. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to such Agent; (ii) the fees, disbursements and
expenses of counsel for the Agents in connection with the establishment of the
program contemplated hereby, any opinions to be rendered by such counsel
hereunder and under any Terms Agreement and the transactions contemplated
hereunder and under any Terms Agreement; (iii) the cost of printing, producing
or reproducing this Agreement, any Terms Agreement, any Indenture, any Blue Sky
and Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 4(b) hereof, including the fees and disbursements of
counsel for the Agents in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (v) any fees charged by
securities rating services for rating the Securities; (vi) any filing fees
incident to, and the fees and disbursements of counsel for the Agents in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vii) the cost of
preparing the Securities; (viii) the fees and expenses of any Trustee and any
agent of any Trustee and any transfer or paying agent of the Company and the
fees and disbursements of counsel for any Trustee or
10
<PAGE> 11
such agent in connection with any Indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of offers to purchase and
the sale of Securities so long as such advertising expenses have been approved
by the Company; and (x) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. Except as provided in Sections 7 and 8 hereof, each Agent shall
pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any
time ("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to
such Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have been filed with
the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of such
Agent;
(b) Cravath, Swaine & Moore, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, in form reasonably acceptable to such Agent, and
(ii) if and to the extent requested by such Agent, with respect to each
applicable date referred to in Section 4(h) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, an
opinion or opinions, dated such applicable date, to the effect that
such Agent may rely on the opinion or opinions which were last
furnished to such Agent pursuant to this Section 6(b) to the same
extent as though it or they were dated the date of such letter
authorizing reliance (except that the statements in such last opinion
or opinions shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in any
case, in lieu of such an opinion or opinions, an opinion or opinions of
the same tenor as the opinion or opinions referred to in clause (i) but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and in each case such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) The Company's General Counsel, or other counsel for the
Company satisfactory to such Agent, shall have furnished to such Agent
their written opinions, dated the Commencement Date and each applicable
date referred to in Section 4(i) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect that
11
<PAGE> 12
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full corporate
power and authority to own its properties and conduct its business as
described in the Prospectus; and the Company is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as
amended;
(ii) each subsidiary constituting 10% or more of the assets
of the Company as of such date (each such subsidiary being hereinafter
referred to as a "Significant Subsidiary") that is a national banking
association holds a valid Certificate of Authority from the Comptroller
to do business as a national banking association under the laws of the
United States; and all the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and (except, in the case of any national banking
association, as provided in 12 U.S.C. Section 55, as amended)
non-assessable and (except as otherwise set forth in the Prospectus)
are owned directly or indirectly by the Company, to such counsel's
knowledge free and clear of liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that they believe you and they are
justified in relying upon such certificates);
(iii) each other Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and all
of the issued shares of capital stock of each such subsidiary have been
duly and validly authorized and issued, are fully paid and
nonassessable and (except as otherwise set forth in the Prospectus) are
owned directly or indirectly by the Company, to such counsel's
knowledge free and clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe that you and
they are justified in relying upon such opinions and certificates);
(iv) the Company's authorized equity capitalization is as set
forth in the Prospectus as of the date or dates indicated herein; the
Securities conform in all material respects to the description thereof
contained in the Prospectus; and, if the Securities are to be listed on
any securities exchange, authorization therefor has been given, subject
to official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect to the
Securities with such securities exchange and such counsel has no reason
to believe that the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of satisfactory
distribution
(v) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject,
as to enforceability, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws affecting
creditors' rights generally from time to time in effect and subject to
general principles of equity (whether in a proceeding at law or in
equity)); and the Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Agents pursuant
to this Agreement, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture (subject, as
to enforceability, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other
12
<PAGE> 13
laws affecting creditors' rights generally from time to time in effect
and subject to general principles of equity (whether in a proceeding at
law or in equity));
(vi) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit,
which is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any legal
proceedings or material contracts or agreements relating to the Company
fairly summarize such matters;
(vii) such counsel has been advised by the Commission's staff
that the Registration Statement has become effective under the Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); to
the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened, and
the Registration Statement and the Prospectus (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the respective
rules thereunder; and such counsel has no reason to believe that at the
Effective Date the Registration Statement (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus (other than the
financial statements and other financial and statistical information
contained therein as to which such counsel need express no opinion)
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(viii) this Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
(ix) no consent, approval, authorization or order of any
Federal or Ohio court or governmental agency or body is required for
the consummation of the transactions contemplated herein or in any
applicable Terms Agreement, except such as have been obtained under the
Act and the Trust Indenture Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the solicitation
by the Agents to purchase the Securities and such other approvals
(specified in such opinion) as have been obtained;
(x) neither the execution and delivery by the Company of
the Indenture, the issue and sale of the Securities, nor the
consummation by the Company of any other of the transactions herein
contemplated nor the fulfillment by the Company of the terms hereof or
of any applicable Terms Agreement will result in a breach or violation
of, or constitute a default under (A) the articles of incorporation or
code of regulations of the Company, (B) the terms of any indenture or
other material agreement or instrument known to such counsel and to
which the Company or any of its Significant Subsidiaries is a party or
bound, (C) any judgment, order or decree known to such counsel to be
specifically applicable to the Company or any of its Significant Sub
sidiaries of any Federal or Ohio court, regulatory body, administrative
agency,
13
<PAGE> 14
governmental body or arbitrator having jurisdiction over the Company or
any of its Significant Subsidiaries or (D) any provision of Federal or
Ohio statute or governmental regulation applicable to the Company; and
(xi) no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Ohio or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are satisfactory to
counsel for the Agents and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company
and public officials. References to the Prospectus in this paragraph
(B) include any supplements thereto at the Closing Date.
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the 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 shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect set
forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement
relating to the Securities to be delivered at the relevant Time of
Delivery any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior
to the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery there shall not have been
any change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of such
Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent of offers to
purchase Securities from the Company or the purchase by such Agent of
Securities from the Company as principal, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced
14
<PAGE> 15
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York declared by either
Federal, New York State, Ohio State or Texas State authorities; or (iv)
the outbreak or material escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war, if the effect on financial markets of any such event specified
in the Clause (iv) in the judgment of such Agent makes it impracticable
or inadvisable to proceed with the solicitation of offers to purchase
Securities or the purchase of the Securities from the Company as
principal pursuant to the applicable Terms Agreement or otherwise, as
the case may be, on the terms and in the manner contemplated in the
Prospectus;
(h) With respect to any Security denominated in a currency
other than the U.S. dollar, more than one currency or a composite
currency or any Security the principal or interest of which is indexed
to such currency, currencies or composite currency, there shall not
have occurred a suspension or material limitation in foreign exchange
trading in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse change in
the existing financial, political or economic conditions of, or the
declaration of war or a national emergency by, the country or countries
issuing such currency, currencies or composite currency or the
imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency, currencies
or composite currency; and
(i) The Company shall have furnished or caused to be furnished
to such Agent certificates of officers of the Company dated the
Commencement Date and each applicable date referred to in Section 4(k)
hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, as to
the accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Commencement
Date or such applicable date, as the case may be, as to the matters set
forth in subsections (a) and (e) of this Section 6, and as to such
other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several,
to which such Agent may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating
to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such Agent for
any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such action or claim as such
expenses are incurred; provided, however,
15
<PAGE> 16
that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or any
amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to the Company by such Agent
expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended
or supplemented or any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended
or supplemented or any other prospectus relating to the Securities, or
any amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party (i) shall not relieve the
indemnifying party from liability under subsection (a) or (b) above
unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) shall not relieve it from any
liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to,
16
<PAGE> 17
or an admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent on the other from the
offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
each Agent on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities
(before deducting expenses) received by the Company bear to the total
commissions or discounts received by such Agent in respect thereof. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact required to
be stated therein or necessary in order to make the statements therein
not misleading relates to information supplied by the Company on the
one hand or by any Agent on the other 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
subsection (d) were determined by per capita allocation (even if all
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 above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), an Agent shall
not be required to contribute any amount in excess of the amount by
which the total public offering price at which the Securities purchased
by or through it were sold exceeds the amount of any damages which such
Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations of
each of the Agents under this subsection (d) to contribute are several
in proportion to the respective purchases made by or through it to
which such loss, claim, damage or liability (or action in respect
thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition to
any liability which such Agent may otherwise have and shall extend,
upon
17
<PAGE> 18
the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the
meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities 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. Each Agent will
make reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Securities 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 Securities to a purchaser whose
offer it has accepted, the Company shall (i) hold each Agent harmless
against any loss, claim or damage 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.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth
in or made pursuant to this Agreement shall remain in full force and
effect regardless of any investigation (or any statement as to the
results thereof) 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 Securities.
10. The provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company may be suspended or
terminated at any time by the Company as to any Agent or by any Agent
as to such Agent upon the giving of written notice of such suspension
or termination to such Agent or the Company, as the case may be. In the
event of such suspension or termination with respect to any Agent, (x)
this Agreement shall remain in full force and effect with respect to
any Agent as to which such suspension or 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 Securities which are already issued, agreed
to be issued or the subject of a pending offer at the time of such
suspension or termination and (z) in any event, this Agreement shall
remain in full force and effect insofar as the fourth paragraph of
Section 2(a), and Sections 4(d), 4(e), 5, 7, 8 and 9 hereof are
concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in
writing, and if to Goldman, Sachs & Co. shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered
mail to 85 Broad Street, New York, New York 10004, Facsimile
Transmission No. (212) 363-7609, Attention: Credit Department, and if
to Banc One Capital Corporation, [ ];and if to
Credit Suisse First Boston Corporation [ ], and if
to J.P. Morgan Securities Inc. [ ], and if to
Lazard Freres & Co. LLC [ ], and if to Lehman Brothers
Inc. [ ],and if to UBS Securities LLC [
] and if to the Company shall be sufficient in all respects
when delivered or sent by facsimile transmission or registered mail to
15 East Gay Street, Columbus, OH 43215, facsimile no. 614-248- 5624,
Attention:
18
<PAGE> 19
12. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company, and to
the extent provided in Sections 7, 8 and 9 hereof, the officers and
directors of the Company and any person who controls any Agent or the
Company, and their respective personal representatives, successors and
assigns, and no other person shall acquire or have any right under or
by virtue of this Agreement or any Terms Agreement. No purchaser of any
of the Securities through or from any Agent hereunder shall be deemed a
successor or assign by reason merely of such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day
when the Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any
one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be an original, but all of such
respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us ...... counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
BANC ONE CORPORATION
By:
.........................................
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
.....................................
(Goldman, Sachs & Co.)
BANC ONE CAPITAL CORPORATION
By:..................................
Name:
Title:..........................
19
<PAGE> 20
CREDIT SUISSE FIRST BOSTON CORPORATION
By:....................................
Name:
Title:............................
J.P. MORGAN SECURITIES INC.
By:....................................
Name:
Title:............................
LAZARD FRERES & CO. LLC
By:....................................
Name:
Title:............................
LEHMAN BROTHERS INC.
By:....................................
Name:
Title:............................
UBS SECURITIES LLC
By:....................................
Name:
Title:............................
20
<PAGE> 1
================================================================================
BANC ONE CORPORATION
and
THE CHASE MANHATTAN BANK
Trustee
INDENTURE
Dated as of March 3, 1997
Senior Debt Securities
================================================================================
<PAGE> 2
TABLE OF CONTENTS(1)
Page
----
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions.....................................................1
"this Indenture" and certain other
terms ......................................................1
"Act"...........................................................2
"Affiliate".....................................................2
"Authenticating Agent"..........................................3
"Authorized Newspaper"..........................................3
"Authorized Officer"............................................3
"Bearer Security"...............................................3
"Board of Directors"............................................3
"Board Resolution"..............................................3
"Business Day"..................................................3
"CEDEL; CEDEL S.A.".............................................3
"Commission"....................................................3
"Common Depositary".............................................4
"Company".......................................................4
"Company Request" and "Company Order"...........................4
"corporation"...................................................4
"coupon"........................................................4
"Defaulted Interest"............................................4
"Depositary"....................................................4
"Designated Currency"...........................................4
"Dollar"........................................................4
"ECU"...........................................................5
"Euroclear".....................................................5
"European Communities"..........................................5
"Event of Default"..............................................5
"Exchange Rate".................................................5
"Exchange Rate Agent"...........................................5
"Exchange Rate Officer's Certificate"...........................5
"Foreign Currency"..............................................5
"Global Exchange Date"..........................................5
- --------
(1) This table of Contents is not part of the Indenture.
<PAGE> 3
2
Page
----
"Global Security"...............................................6
"Holder"........................................................6
"interest"......................................................6
"Interest Payment Date".........................................6
"Maturity"......................................................6
"Officers' Certificate".........................................6
"Opinion of Counsel"............................................6
"Original Issue Discount Security"..............................6
"Outstanding"...................................................7
"Paying Agent"..................................................8
"Person"........................................................8
"Place of Payment"..............................................8
"Predecessor Security"..........................................8
"Principal Corporate Trust Office"..............................8
"Principal Paying Agent"........................................8
"Redemption Date"...............................................8
"Redemption Price"..............................................8
"Registered Security"...........................................9
"Regular Record Date"...........................................9
"Remarketing Entity"............................................9
"Repayment Date"................................................9
"Repayment Price"...............................................9
"Responsible Officer"...........................................9
"Security" or "Securities"......................................9
"Security Register".............................................9
"Security Registrar"............................................9
"Special Record Date"..........................................10
"Stated Maturity"..............................................10
"Subsidiary of the Company" or
"Subsidiary"...............................................10
"Trustee"......................................................10
"Trust Indenture Act" or "TIA".................................10
"United States"................................................10
"United States Alien"..........................................10
"vice president"...............................................11
SECTION 1.02. Compliance Certificates and Opinions...........................11
SECTION 1.03. Form of Documents Delivered to
Trustee....................................................12
SECTION 1.04. Acts of Holders................................................12
SECTION 1.05. Notices, etc., to Trustee and Company..........................16
SECTION 1.06. Notices to Holders; Waiver.....................................16
SECTION 1.07. Language of Notices, Etc.......................................18
SECTION 1.08. Conflict with Trust Indenture Act..............................18
<PAGE> 4
3
Page
----
SECTION 1.09. Effect of Headings and Table of
Contents...................................................18
SECTION 1.10. Successors and Assigns.........................................18
SECTION 1.11. Separability Clause............................................18
SECTION 1.12. Benefits of Indenture..........................................18
SECTION 1.13. Legal Holidays.................................................19
SECTION 1.14. Governing Law..................................................19
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally................................................19
SECTION 2.02. Form of Securities.............................................20
SECTION 2.03. Form of Trustee's Certificate of
Authentication.............................................21
SECTION 2.04. Global Securities..............................................21
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms................................................22
SECTION 3.02. Denominations..................................................25
SECTION 3.03. Execution, Authentication, Delivery
and Dating.................................................26
SECTION 3.04. Temporary Securities...........................................29
SECTION 3.05. Registration, Registration of
Transfer and Exchange......................................33
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.................................................38
SECTION 3.07. Payment of Interest; Interest Rights
Preserved..................................................40
SECTION 3.08. Persons Deemed Owners..........................................42
SECTION 3.09. Cancellation...................................................43
SECTION 3.10. Computation of Interest........................................43
SECTION 3.11. Forms of Certification.........................................44
SECTION 3.12. Judgments......................................................44
<PAGE> 5
4
Page
----
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article.......................................45
SECTION 4.02. Election to Redeem; Notice to Trustee..........................46
SECTION 4.03. Selection by Security Registrar of
Securities to be Redeemed..................................46
SECTION 4.04. Notice of Redemption...........................................47
SECTION 4.05. Deposit of Redemption Price....................................48
SECTION 4.06. Securities Payable on Redemption Date..........................48
SECTION 4.07. Securities Redeemed in Part....................................49
SECTION 4.08. Redemption Suspended During Event of
Default....................................................49
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and
Interest...................................................50
SECTION 5.02. Maintenance of Office or Agency................................50
SECTION 5.03. Money for Security Payments to Be
Held in Trust..............................................52
SECTION 5.04. Additional Amounts.............................................54
SECTION 5.05. Statement as to Compliance.....................................55
SECTION 5.06. Maintenance of Corporate Existence,
Rights and Franchises......................................56
ARTICLE SIX
Holders' Lists and Reports
By Trustee and Company
SECTION 6.01. Company to Furnish Trustee Names and
Addresses of Holders.......................................56
SECTION 6.02. Preservation of Information;
Communications to Holders..................................57
SECTION 6.03. Reports by Trustee.............................................59
SECTION 6.04. Reports by Company.............................................59
<PAGE> 6
5
Page
----
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default..............................................60
SECTION 7.02. Acceleration of Maturity; Rescission
and Annulment..............................................62
SECTION 7.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.................................63
SECTION 7.04. Trustee May File Proofs of Claim...............................64
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities...................................65
SECTION 7.06. Application of Money Collected.................................65
SECTION 7.07. Limitation on Suits............................................66
SECTION 7.08. Unconditional Right of Holders to
Receive Principal, Premium and
Interest...................................................67
SECTION 7.09. Restoration of Rights and Remedies.............................67
SECTION 7.10. Rights and Remedies Cumulative.................................68
SECTION 7.11. Delay or Omission Not Waiver...................................68
SECTION 7.12. Control by Holders.............................................68
SECTION 7.13. Waiver of Past Defaults........................................69
SECTION 7.14. Undertaking for Costs..........................................69
SECTION 7.15. Waiver of Stay or Extension Laws...............................70
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities............................70
SECTION 8.02. Notice of Default..............................................72
SECTION 8.03. Certain Rights of Trustee......................................72
SECTION 8.04. Not Responsible for Recitals or
Issuance of Notes..........................................74
SECTION 8.05. May Hold Securities............................................74
SECTION 8.06. Money Held in Trust............................................74
SECTION 8.07. Compensation and Reimbursement.................................74
SECTION 8.08. Disqualification; Conflicting
Interests..................................................75
SECTION 8.09. Corporate Trustee Required;
Eligibility................................................76
<PAGE> 7
6
Page
----
SECTION 8.10. Resignation and Removal; Appointment
of Successor...............................................76
SECTION 8.11. Acceptance of Appointment by
Successor..................................................79
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee..........................80
SECTION 8.13. Preferential Collection of Claims
Against Company............................................81
SECTION 8.14. Appointment of Authenticating Agents...........................81
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without
Consent of Holders.........................................83
SECTION 9.02. Supplemental Indentures With Consent
of Holders.................................................85
SECTION 9.03. Execution of Supplemental Indentures...........................86
SECTION 9.04. Effect of Supplemental Indentures..............................87
SECTION 9.05. Conformity with Trust Indenture Act............................87
SECTION 9.06. Reference in Securities to
Supplemental Indentures....................................87
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only
on Certain Terms...........................................87
SECTION 10.02. Successor Corporation Substituted..............................88
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of
Indenture..................................................88
SECTION 11.02. Application of Trust Money.....................................90
SECTION 11.03. Reinstatement..................................................90
<PAGE> 8
7
Page
----
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability............................91
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article.......................................91
SECTION 13.02. Satisfaction of Sinking Fund Payments
with Securities............................................92
SECTION 13.03. Redemption of Securities for Sinking
Fund.......................................................92
ARTICLE FOURTEEN
Repayment at the Option of Holders
SECTION 14.01. Applicability of Article.......................................93
SECTION 14.02. Repayment of Securities........................................93
SECTION 14.03. Exercise of Option; Notice.....................................93
SECTION 14.04. Election of Repayment by Remarketing
Entities...................................................95
SECTION 14.05. Securities Payable on the Repayment
Date.......................................................95
ARTICLE FIFTEEN
Meeting of Holders of Securities
SECTION 15.01. Purposes for Which Meetings May Be
Called.....................................................96
SECTION 15.02 Call, Notice and Place of Meetings.............................96
SECTION 15.03. Persons Entitled to Vote at Meetings...........................97
SECTION 15.04. Quorum; Action.................................................97
<PAGE> 9
8
Page
----
SECTION 15.05. Determination of Voting Rights;
Conduct and Adjournment of Meetings........................98
SECTION 15.06. Counting Votes and Recording Action
of Meetings................................................99
ARTICLE SIXTEEN
Miscellaneous
SECTION 16.01. Counterparts..................................................100
TESTIMONIUM..................................................................101
SIGNATURES AND SEALS.........................................................101
ACKNOWLEDGMENTS..............................................................102
EXHIBIT A. Form of Certificate to be Given by
Person Entitled to Receive Bearer
Security
EXHIBIT B. Form of Certificate to be Given by
Euroclear and CEDEL S.A. in Connection
with the Exchange of a Portion of a
Temporary Global Security
EXHIBIT C. Form of Certificate to be Given by
Euroclear and CEDEL S.A. to Obtain
Interest Prior to an Exchange Date
EXHIBIT D. Form of Certificate to be Given by
Beneficial Owners to Obtain Interest
Prior to an Exchange Date
<PAGE> 10
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
Reflected in
Indenture Section
-----------------
TIA
Section 310(a)(1)........................................... 8.09
(a)(2)........................................... 8.09
(a)(3)........................................... Not Applicable
(a)(4)........................................... Not Applicable
(a)(5)........................................... 8.09
(b).............................................. 8.08
8.10
(c).............................................. Not Applicable
Section 311(a).............................................. 8.13
(b).............................................. 8.13
Section 312(a).............................................. 6.01
6.02(i)
(b).............................................. 6.02(ii)
(c).............................................. 6.02(iii)
Section 313(a).............................................. 6.03(i)
(b).............................................. 6.03(ii)
(c).............................................. 6.03(i),(ii) and
(iii)
(d).............................................. 6.03(iii)
Section 314(a).............................................. 6.04
5.05
(b).............................................. Not Applicable
(c)(1)........................................... 1.02
(c)(2)........................................... 1.02
(c)(3)........................................... Not Applicable
(d).............................................. Not Applicable
(e).............................................. 1.02
(f).............................................. Not Applicable
Section 315(a).............................................. 8.01(i)
8.01(iii)
(b).............................................. 8.02
(c).............................................. 8.01(ii)
(d).............................................. 8.01
(d)(1)........................................... 8.01(i)
(d)(2)........................................... 8.01(iii)(b)
(d)(3)........................................... 8.01(iii)(c)
(e).............................................. 7.14
Section 316(a).............................................. 1.01
<PAGE> 11
2
Reflected in
Indenture Section
-----------------
Section 316(a)(1)(A)........................................ 7.02
7.12
(a)(1)(B)........................................ 7.13
(a)(2)........................................... Not Applicable
(b).............................................. 7.08
(c).............................................. 1.04(viii)
Section 317(a)(1)........................................... 7.03
(a)(2)........................................... 7.04
(b).............................................. 5.03
Section 318(a).............................................. 1.08
(c).............................................. 1.08
<PAGE> 12
THIS INDENTURE is entered into as of March 3, 1997,
between BANC ONE CORPORATION, a corporation organized and
existing under the laws of the State of Ohio (hereinafter
called the "Company"), having its principal executive
office at 100 East Broad Street, Columbus, Ohio 43271,
and THE CHASE MANHATTAN BANK, a New York banking
corporation (hereinafter called the "Trustee"), having
its principal corporate trust office at 450 W. 33rd
Street, 15th Floor, New York, New York 10001.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its
unsecured debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other
Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as
originally executed or as it may from
<PAGE> 13
2
time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and shall include the terms of particular series of Securities
established as contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Indenture. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(iii) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as may be otherwise expressly
provided herein or in one or more indentures supplemental hereto, the
term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE> 14
3
"Authenticating Agent" means any Person authorized to act on
behalf of the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official
language of the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice Chairman of the Board, any Vice President, the Treasurer,
the Secretary, the Comptroller, any Assistant Comptroller, any Assistant
Treasurer or any Assistant Secretary of the Company.
"Bearer Security" means any Security in the form established
pursuant to Section 2.02 which is payable to bearer, including, without
limitation, unless the context otherwise indicates, a Security in global bearer
form.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
on which banking institutions in the City of Columbus, Ohio and any Place of
Payment for the Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme or
its successors.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if any time
after the execution and
<PAGE> 15
4
delivery of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section
3.04(b)(ii).
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, its President, a Vice Chairman of the Board, or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Comptroller, an Assistant
Comptroller, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section
3.07.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of a Global Security, the Person
designated as Depositary by the Company pursuant to Section 3.01 until a
successor Depositary shall have been appointed pursuant to Section 3.05, 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 Securities of that series.
"Designated Currency" has the meaning specified in Section
3.12.
"Dollar" or "$" 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.
<PAGE> 16
5
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as
contemplated in Section 3.01.
"Exchange Rate Agent" shall have the meaning specified as
contemplated in Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date
for the payment of principal of (and premium, if any) and interest on any series
of Securities, means a Certificate setting forth the applicable Exchange Rate
and the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in
ECU, any other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, any Vice
President, the Treasurer or any Assistant Treasurer of the Company or the
Exchange Rate Agent appointed pursuant to Section 3.01 and delivered to the
Trustee.
"Foreign Currency" means a currency issued by the government
of any country other than the United States of America.
"Global Exchange Date" has the meaning specified in Section
3.04(b)(iv).
<PAGE> 17
6
"Global Security" means a Security issued to evidence all or a
part of a series of Securities in accordance with Section 3.03.
"Holder" with respect to a Registered Security, means a Person
in whose name such Registered Security is registered in the Security Register
and, with respect to a Bearer Security (or any temporary Global Security) or a
coupon, means the bearer thereof.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any series
of Securities, means the Stated Maturity of an instalment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security (or any instalment of principal)
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, a Vice Chairman of the Board, or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Comptroller, an
Assistant Comptroller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee. Each such certificate shall contain the statements
set forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be an employee of
the Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion shall contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 7.02.
<PAGE> 18
7
"Outstanding", when used with respect to Securities or
Securities of any series, means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) such Securities in lieu of which other Securities have
been authenticated and delivered pursuant to Section 3.06 of this
Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding 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, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
<PAGE> 19
8
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest on any Securities or any
coupons appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where, subject to the provisions of
Section 5.02, the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified in accordance with Section
3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the
Trustee, at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
instrument is at the address set forth in the first paragraph of this
instrument.
"Principal Paying Agent" means the Paying Agent, if any,
designated as such by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price specified in such Security at which it is to be
redeemed pursuant to this Indenture.
<PAGE> 20
9
"Registered Security" means any Security in the form
established pursuant to Section 2.02 which is registered in the Security
Register.
"Regular Record Date" for the interest payable on any Security
on any Interest Payment Date means the date, if any, specified in such Security
as the "Regular Record Date".
"Remarketing Entity", when used with respect to the Securities
of any series which are repayable at the option of the Holders thereof before
their Stated Maturity, means any Person designated by the Company to purchase
any such Securities.
"Repayment Date", when used with respect to any Security to be
repaid upon exercise of option for repayment by the Holder, means the date fixed
for such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to
be repaid upon exercise of option for repayment by the Holder, means the price
at which it is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" means any Security or Securities,
as the case may be, authenticated and delivered under this Indenture; provided,
however, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities," with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section
3.05.
<PAGE> 21
10
"Special Record Date" for the payment of any Defaulted
Interest means the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security, or such installment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a
corporation, at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more Subsidiaries of
the Company, or by the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means
stock having ordinary voting power for the election of directors irrespective of
whether or not stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise
expressly provided) means the Trust Indenture Act of 1939, as in force at the
date as of which this instrument was executed, and, to the extent required by
law, as amended.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or
pursuant to this Indenture, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
<PAGE> 22
11
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership, one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except as otherwise
expressly provided in this Indenture) shall include:
(i) a statement that each individual 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 statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
<PAGE> 23
12
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders or Holders of any series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Securities of a series are issuable in whole or in part as Bearer Securities,
any request, demand, authorization, direction, notice, consent,
<PAGE> 24
13
waiver or other action provided by this Indenture to be given or taken by
Holders may, alternatively, be embodied in and evidenced by the record of
Holders of Securities voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities duly called
and held in accordance with the provisions of Article Fifteen, or a combination
of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 8.01) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 15.06.
(ii) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved
by the Security Register.
(iv) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank or other depositary, wherever situated,
if such certificate shall be deemed by
<PAGE> 25
14
the Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(v) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(vi) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of any action taken, suffered or omitted by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(vii) For purposes of determining the principal amount of
Outstanding Securities of any series the Holders of which are required,
requested or permitted to give any request, demand, authorization, direction,
notice, consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, by Holders of the required aggregate principal amount of the
<PAGE> 26
15
Outstanding Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.01).
(viii) The Company may, in the circumstances permitted by the
Trust Indenture Act, set a record date for purposes of determining the identity
of Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents, each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount. Any notice
given or action taken by a Holder or its agents with regard to different parts
of such principal amount pursuant to this paragraph shall have the same effect
as if given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that is the
Holder of a Global Security, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given or
taken by Holders, and a Depositary that is the Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of interests in any such
Global Security through such Depositary's standing instructions and customary
practices.
<PAGE> 27
16
(xi) The Company may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any Global
Security held by a Depositary entitled under the procedures of such Depositary
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders. If such
a record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or take
such request, demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Principal Corporate
Trust Office, Attention: Corporate Trustee Administration Department;
or
(ii) the Company by any Holder or by the Trustee shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage
prepaid, to the Company, to the attention of its Treasurer, addressed
to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture
or any Security provides for notice to Holders of any event:
(1) such notice shall be sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and
mailed, first class,
<PAGE> 28
17
postage prepaid, to each Holder of Registered Securities affected by
such event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and, if the Securities of such series are then listed on
The International Stock Exchange of the United Kingdom and the Republic
of Ireland Limited and such stock exchange shall so require, in London
and, if the Securities of such series are then listed on the Luxembourg
Stock Exchange and such stock exchange shall so require, in Luxembourg
and, if the Securities of such series are then listed on any other
stock exchange and such stock exchange shall so require, in any other
required city outside the United States, or, if not practicable,
elsewhere in Europe on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later
than the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published,
<PAGE> 29
18
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
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.
SECTION 1.07. 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 1.08. Conflict with Trust Indenture Act. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.11. Separability Clause. 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 1.12. Benefits of Indenture. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or
<PAGE> 30
19
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, in any
case where any Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date of any Security or any date on which any Defaulted Interest is
proposed to be paid shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provisions of the Securities or this Indenture)
payment of the principal of, premium, if any, or interest on any Securities need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date or on
the date on which Defaulted Interest is proposed to be paid, and, if such
payment is made, no interest shall accrue on such payment for the period from
and after any such Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date, or date on which Defaulted Interest is proposed to be paid, as
the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities
shall be construed in accordance with and governed by the laws of the State of
New York.
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally. All Securities and any related
coupons shall have such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, the
<PAGE> 31
20
Securities of each series shall be issuable in registered form without coupons.
If so provided as contemplated by Section 3.01, the Securities of a series shall
be issuable solely in bearer form, or in both registered form and bearer form.
Unless otherwise specified as contemplated by Section 3.01, Securities in bearer
form shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon
shall be in one of the forms approved from time to time by or pursuant to a
Board Resolution or an indenture supplemental hereto. Upon or prior to the
delivery of a Security or coupons in any such form to the Trustee for
authentication, the Company shall deliver to the Trustee the following:
(i) such indenture supplemental hereto or the Board Resolution
by or pursuant to which such form of Security or coupons has been
approved, certified by the Secretary or an Assistant Secretary of the
Company;
(ii) the Officers' Certificate required by Section 3.01 of
this Indenture;
(iii) the Company Order required by Section 3.03 of this
Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global
form as permitted by Section 3.04, the form thereof also shall be established as
provided in this Section 2.02.
<PAGE> 32
21
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee,
by
--------------------------
Authorized Officer
SECTION 2.04. Global Securities. If Securities of a series are
issuable in whole or in part in global form, as specified as contemplated by
Section 3.01, then, notwithstanding clause (xii) of Section 3.01 and the
provisions of Section 3.02, such Global Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased to
reflect exchanges or increased to reflect the issuance of additional
uncertificated securities of such series. Any endorsement of a Global Security
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form.
<PAGE> 33
22
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All
Securities of each series issued under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time or
times of the authentication and delivery or Maturity of the Securities of such
series. There shall be established in or pursuant to a Board Resolution, and set
forth in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(i) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or
aggregate initial public offering price of the Securities of the series
which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of
that series pursuant to this Article Three or Sections 4.07, 9.06 or
14.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a
percentage of the aggregate principal amount thereof) at which the
Securities will be issued;
(v) the date or dates on which the principal and premium, if
any, of the Securities of the series is payable;
<PAGE> 34
23
(vi) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods by which such
rates may be determined, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the Regular Record Date for the interest
payable on any Interest Payment Date and the basis upon which interest
shall be calculated if other than that of a 360-day year consisting of
twelve 30-day months;
(vii) the extent to which any of the Securities will be
issuable in temporary or permanent global form, and in such case, the
Depositary for such Global Security or Securities, the terms and
conditions, if any, upon which such Global Security may be exchanged in
whole or in part for definitive securities, and the manner in which any
interest payable on a temporary or permanent Global Security will be
paid, whether or not consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to
Section 5.02, the Securities may be presented for registration of
transfer or exchange;
(ix) the place or places where, subject to the provisions of
Section 5.02, the principal of (and premium, if any) and interest, if
any, on Securities of the series shall be payable;
(x) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(xii) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Registered Securities of
the series shall be issuable; and, if other than $5,000 or any integral
multiple
<PAGE> 35
24
thereof, the denominations in which Bearer Securities of the series
shall be issuable;
(xiii) the currency or currencies of denominations of the
Securities of any series, which may be in Dollars, any Foreign Currency
or any composite currency, including but not limited to the ECU, and,
if any such currency of denomination is a composite currency other than
the ECU, the agency or organization, if any, responsible for overseeing
such composite currency;
(xiv) the currency or currencies in which payment of the
principal of (and premium, if any) and interest on the Securities will
be made, the currency or currencies, if any, in which payment of the
principal of (and premium, if any) or the interest on Registered
Securities, at the election of each of the Holders thereof, may also be
payable and the periods within which and the terms and conditions upon
which such election is to be made and the Exchange Rate and the
Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium,
if any) or any interest on Securities of the series may be determined
with reference to an index, the method or methods by which such amounts
shall be determined;
(xvi) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of
the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer
Securities shall be dated if other than the date of original issuance
of the first Security of such series of like tenor and term to be
issued;
(xvii) whether, and under what conditions, additional amounts
will be payable to Holders of Securities of the series pursuant to
Section 5.04;
(xviii) whether any of the Securities will be issued as Original
Issue Discount Securities and the portion of the principal amount of
such Securities which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 7.02;
<PAGE> 36
25
(xix) information with respect to book-entry procedures, if
any;
(xx) any addition to or change in the Events of Default or
covenants of the Company pertaining to the Securities of the series;
and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining
to Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth,
or determined in the manner provided, in such Officers' Certificate or in any
such indenture supplemental hereto.
Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption Dates or
Repayment Dates and may be denominated in different currencies or payable in
different currencies.
Notwithstanding Section 3.01(ii) and unless otherwise
expressly provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and additional
Securities of such series may be issued up to the maximum aggregate principal
amount authorized with respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series
shall be issuable in such form and denominations as shall be specified as
contemplated by Section 3.01. In the absence of any specification with respect
to the Securities of any series, the Registered Securities of each series shall
be issuable only as Securities without coupons in denominations of $1,000 and
any integral multiple thereof and the Bearer Securities of each series, if any,
shall be issuable with coupons and in denominations of $5,000 and any integral
multiple thereof.
<PAGE> 37
26
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, a Vice Chairman of the Board, or one of its Vice
Presidents or its Treasurer and by its Secretary or one of its Assistant
Secretaries. The signatures of any or all of these officers on the Securities
may be manual or facsimile. Coupons shall bear the facsimile signature of the
Company's Chairman of the Board, its President, a Vice Chairman of the Board,
one of its Vice Presidents or the Treasurer.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee shall, upon receipt of the
Company Order, authenticate and deliver such Securities as in this Indenture
provided and not otherwise; provided, however, that, in connection with its
original issuance, no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided further that a Bearer Security
may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have delivered to the Trustee, or
such other Person as shall be specified in a temporary Global Security delivered
pursuant to Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount
<PAGE> 38
27
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by one or more Global Securities, (ii) shall be
registered, if in registered form, in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary, and (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions.
Each Depositary designated pursuant to Section 3.01 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that:
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the
manner of determining such terms, have been established in conformity
with the provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject
to bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general
principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
<PAGE> 39
28
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this
Section 3.03, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series; provided that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such request, the statements made
in the Officers' Certificate or other certificates delivered pursuant to
Sections 1.02 and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon telephonic (promptly confirmed in writing), electronic or written order of
Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
Each Registered Security shall be dated the date of its
authentication; and unless otherwise specified as contemplated by Section 3.01,
each Bearer Security and any
<PAGE> 40
29
temporary Global Security referred to in Section 3.04 shall be dated as of the
date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 3.06, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
Notwithstanding the foregoing, if any Security or portion thereof shall have
been duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09 together with a written statement
(which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) stating that such Security or portion thereof has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Company may execute, and
upon Company Order and the receipt of the certifications and opinions required
under Sections 3.01 and 3.03, the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denominations, 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 by their execution of such Securities. In the case of any series which
may be issuable as Bearer Securities, such temporary Securities may be in global
form, representing such of the Outstanding Securities of such series as shall be
specified therein.
<PAGE> 41
30
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form,
each of 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 such series to
be prepared without unreasonable delay. After the preparation of
definitive Securities, 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 in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied, if applicable, by all unmatured
coupons and all matured coupons in default appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of
such series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a definitive
Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in the
provisions of the third paragraph of Section 3.03. Until so exchanged,
the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
(ii) If temporary Securities of any series are issued in
global form, any such temporary Global Security shall, unless otherwise
provided in such temporary Global Security, be delivered to the London
office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the operator of Euroclear and CEDEL S.A., for credit
to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct). Upon receipt of written
instructions (which need not comply with Section 1.02) signed on behalf
of the Company by any Person authorized to give such instructions, the
Trustee or any Authenticating Agent shall endorse such temporary Global
Security to reflect
<PAGE> 42
31
the initial principal amount, or an increase in the principal amount,
of Outstanding Securities represented thereby. Until such initial
endorsement, such temporary Global Security shall not evidence any
obligation of the Company. Such temporary Global Security shall at any
time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to
reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global
Security, and subject to the second proviso in the following paragraph,
the interest of a beneficial owner of Securities of a series in a
temporary Global Security shall be exchanged for definitive Securities
(including a definitive global Bearer Security) of such series and of
like tenor following the Global Exchange Date (as defined below) when
the account holder instructs Euroclear or CEDEL S.A., as the case may
be, to request such exchange on his behalf and delivers to Euroclear or
CEDEL S.A., as the case may be, a certificate in the form required by
Section 3.11(i), dated no earlier than 15 days prior to the Global
Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL S.A., the Trustee, any Authenticating
Agent appointed for such series of Securities and each Paying Agent.
Unless otherwise specified in such temporary Global Security, 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
S.A. Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary Global Security shall be delivered only
outside the United States.
(iv) 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 as the "Global Exchange Date" (the "Global
Exchange Date"), the Company shall deliver to the Trustee, or, if the
Trustee appoints an Authenticating Agent pursuant to Section 8.14, to
any such Authenticating Agent, definitive Securities in
<PAGE> 43
32
aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. Unless otherwise
specified as contemplated by Section 3.01, such definitive Securities
shall be in the form of Bearer Securities or Registered Securities, or
any combination thereof, as may be specified by the Company, the
Trustee or any such Authenticating Agent, as may be appropriate. On or
after the Global Exchange Date, such temporary Global Security shall be
surrendered by the Common Depositary to the Trustee or any such
Authenticating Agent, 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 or any such Authenticating
Agent 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 authorized denominations
and of like tenor as the portion of such temporary Global Security to
be exchanged, which, except as otherwise specified as contemplated by
Section 3.01, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof; provided, however, that, unless
otherwise specified in such temporary Global Security, upon such
presentation by the Common Depositary, such temporary Global Security
is accompanied by a certificate dated the Global 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 Global Exchange Date or a subsequent date and
signed by CEDEL S.A., as to the portion of such temporary Global
Security held for its account then to be exchanged, each in the form
required by Section 3.11(ii); and provided further that a definitive
Bearer Security (including a definitive global Bearer Security) shall
be delivered in exchange for a portion of a temporary Global Security
only in compliance with the conditions set forth in the provisions of
the third paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary
Global Security, such temporary Global Security shall be endorsed by
the Trustee or any such Authenticating Agent, as the case may be, to
reflect the reduction of the principal amount evidenced thereby,
whereupon its remaining principal amount shall be reduced for all
purposes by the amount so exchanged.
<PAGE> 44
33
Until so exchanged in full, such temporary Global Security shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by
Section 3.01, interest payable on such temporary Global Security on an
Interest Payment Date for Securities of such series occurring prior to
the applicable Global Exchange Date shall be payable, without interest,
to Euroclear and CEDEL S.A. on or after such Interest Payment Date upon
delivery by Euroclear and CEDEL S.A. to the Trustee or the Paying
Agent, as the case may be, of a certificate or certificates in the form
required by Section 3.11(iii), for credit on or after such Interest
Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as
the case may be, a certificate in the form required by Section
3.11(iv). Any interest so received by Euroclear and CEDEL S.A. and not
paid as herein provided prior to the Global Exchange Date shall be
returned to the Trustee or Paying Agent, as the case may be, which,
upon expiration of two years after such Interest Payment Date, shall
repay such interest to the Company on Company Request in accordance
with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and
Exchange. With respect to Registered Securities, the Company shall keep or cause
to be kept a register (sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and the registration
of transfers of Registered Securities and the Company shall appoint a "Security
Registrar", and may appoint any "Co-Security Registrar" as may be appropriate,
to keep the Security Register. Such Security Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
Security Register shall be available for inspection by the Trustee at the office
of the Security Registrar. In the event that any Registered Securities issued
hereunder have The City of New York as a Place of Payment, the Company shall
appoint either a Security Registrar or Co-Security Registrar located in The City
of New York.
<PAGE> 45
34
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 5.02 for such purpose in a Place of Payment for such series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of such series of any authorized denominations and of a like
aggregate principal amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of such series, of any
authorized denominations and of like aggregate principal amount, tenor and
Stated Maturity, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer
Securities.
At the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such 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 any such payment from the
Company; provided, however, that interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency of a Paying Agent, maintained pursuant to Section 5.02 for such purpose,
located outside the United States. Notwithstanding
<PAGE> 46
35
the foregoing, in case a Bearer Security of any series is surrendered at any
such office or agency in exchange for a Registered Security of the same series
and like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related date for
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for individual Securities
represented thereby, a 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.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.03, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.01(vii) shall no longer be effective with respect to the Securities of
such series and the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of
<PAGE> 47
36
the Global Security or Securities representing such series in exchange for such
Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, shall authenticate and deliver, without service
charge:
(a) to the Depositary or to each Person specified by such
Depositary a new Security or Securities of the same series, of like
tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and
terms and in an authorized denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security
and the aggregate principal amount of Securities delivered to Holders
thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee, pursuant to a Company
Order, will authenticate and deliver, Securities (a) in definitive registered
form in authorized denominations, if the Securities of such series
<PAGE> 48
37
are issuable as Registered Securities, (b) in definitive bearer form in
authorized denominations, with coupons attached, if the Securities of such
series are issuable as Bearer Securities or (c) as either Registered or Bearer
Securities, if the Securities of such series are issuable in either form;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in
definitive form, such Global Securities shall be canceled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section 3.05 shall be registered in such names and in such authorized
denominations, and delivered to such addresses, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the Persons in whose names such
Securities are so registered or to the Depositary. The Trustee shall deliver
Bearer Securities issued in exchange for a Global Security pursuant to this
Section 3.05 to the Depositary or to the Persons at such addresses, and in such
authorized denominations, as the Depositary for such Global Security, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security other
than in accordance with the provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
<PAGE> 49
38
Unless otherwise provided in the Securities to be registered
for transfer or exchanged, no service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
Neither the Company, the Security Registrar nor any
Co-Security Registrar shall be required (i) to issue, register the transfer of
or exchange any Securities of any series during a period beginning at the
opening of business 15 days before the day of selection of Securities of such
series to be redeemed and ending at the close of business on (A) if Securities
of the series are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption of Registered Securities of such series so
selected for redemption or (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer or exchange of any Securities or
portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities into Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange; none of the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges unless and until the Trustee receives a subsequent Company Order
to the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities. If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to the
<PAGE> 50
39
Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however,
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
however, that payment of principal of (and premium, if any) and any interest on
Bearer Securities shall be payable only at an office or agency located outside
the United States, and, in the ease of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security with a destroyed, lost or stolen coupon,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or
<PAGE> 51
40
stolen coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of the same series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall unless otherwise provided in such
Security be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise specified as contemplated by
Section 3.01, in case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency referred to in Section 3.05) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture. At the
option of the Company, payment of interest on any Registered Security may be
made by check in the currency designated for such payment pursuant to the terms
of such Registered Security mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or by wire transfer to an
account in such currency designated by such Person in writing not later than ten
days prior to the date of such payment.
Any interest on any Registered Security which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of his having been such
Holder, and such Defaulted Interest may be paid by
<PAGE> 52
41
the Company, at its election in each case, as provided in clause (i) or clause
(ii) below.
(i) The Company may elect to make payments of any Defaulted
Interest to the Persons in whose names any such Registered Securities
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder at
his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered on such Special Record Date and
shall no longer be payable pursuant to the following clause (ii). In
case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such
office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date of
payment of Defaulted Interest, such
<PAGE> 53
42
Bearer Security shall be surrendered without the coupon relating to
such proposed date for payment and Defaulted Interest will not be
payable on such proposed date for payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities with respect to which there
exists such default may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Subject to the limitations set forth in Section 5.02, the
Holder of any coupon appertaining to a Bearer Security shall be entitled to
receive the interest payable on such coupon upon presentation and surrender of
such coupon on or after the Interest Payment Date of such coupon at an office or
agency maintained for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer
Security, any coupons appertaining thereto and any temporary Global Security
shall pass by delivery.
Prior to due presentment for registration of transfer of any
Registered Security, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.07) interest on such Security, and
for all purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
<PAGE> 54
43
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent or the Security Registrar will have the responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interest of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interest, and they shall be fully protected in acting or refraining from acting
on any such information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with
respect to a series of Securities, all Securities and coupons surrendered for
payment, registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture or such Securities. All cancelled Securities or coupons held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures and the Trustee shall deliver a certificate of such
disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the
Securities of each series shall be computed as shall be specified as
contemplated by Section 3.01.
<PAGE> 55
44
SECTION 3.11. Form of Certification. Unless otherwise provided
pursuant to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by a Person entitled
to receive a Bearer Security, such certification shall be provided
substantially in the form of Exhibit A hereto, with only such changes
as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and
CEDEL S.A. in connection with the exchange of a portion of a temporary
Global Security, such certification shall be provided substantially in
the form of Exhibit B hereto, with only such changes as shall be
approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and
CEDEL S.A. in connection with payment of interest with respect to a
temporary Global Security prior to the related Global Exchange Date,
such certification shall be provided substantially in the form of
Exhibit C hereto, with only such changes as shall be approved by the
Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial
owner of a portion of a temporary Global Security in connection with
payment of interest with respect to a temporary Global Security prior
to the related Global Exchange Date, such certification shall be
provided substantially in the form of Exhibit D hereto, with only such
changes as shall be approved by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to
Section 3.01, for the Securities of any series that, to the fullest extent
possible under applicable law and except as may otherwise be specified as
contemplated in Section 3.01, (a) the obligation, if any, of the Company to pay
the principal of (and premium, if any) and interest on the Securities of any
series and any appurtenant coupons in a Foreign Currency, composite currency or
Dollars (the "Designated Currency") as may be specified pursuant to Section 3.01
is of the essence and agrees that judgments in respect of such Securities shall
be given in the Designated
<PAGE> 56
45
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such
Securities and any appurtenant coupons shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
SECTION 3.13 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers or Euroclear or CEDEL reference numbers (if
then generally in use), and if, so, the Trustee shall use such numbers in
notices of redemption or other related material as a convenience to Holders;
provided that any such notice or other related material may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other related
material and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and, except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, in accordance with this Article.
<PAGE> 57
46
SECTION 4.02. Election To Redeem; Notice To Trustee. The
election of the Company to redeem any Securities redeemable at the option of the
Company shall be evidenced by an Officers' Certificate. In case of any
redemption at the election of the Company of the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee and the Security Registrar of such Redemption Date and of the
principal amount of Securities of such series to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To
Be Redeemed. If less than all the Securities of any series with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Security Registrar
from the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for Securities of
such series. Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be, in the
case of Registered Securities, equal to $1,000 or an integral multiple thereof
or, in the case of Bearer Securities, equal to $5,000 or an integral multiple
thereof, and the principal amount of any such Security which remains outstanding
shall not be less than the minimum authorized denomination for Securities of
such series.
The Security Registrar shall promptly notify the Company, the
Trustee and the Co-Security Registrar, if any, in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
<PAGE> 58
47
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 of such Security which has been or is to
be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 1.06, not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series
having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of
the particular Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed, and that
interest, if any, thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the
case of Bearer Securities with all remaining coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(vi) that the redemption is for a sinking fund, if such is the
case; and
(vii) the CUSIP number or the Euroclear or the CEDEL reference
numbers (or any other number used by a Depository to identify such
Securities), if any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section
1.06 need not identify particular Registered Securities to be redeemed.
<PAGE> 59
48
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, on Company Request, by
the Trustee in the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the
opening of business on any Redemption Date, the Company shall deposit or cause
to be deposited with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 5.03) an amount of money sufficient to pay the Redemption Price of all
the Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of
<PAGE> 60
49
such missing coupon or coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by such Security, or as otherwise
provided in such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at the office or agency of
the Company in a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all Securities then
Outstanding are to be redeemed) or commence the giving of any notice of
redemption of Securities during the continuance of any Event of Default known to
the Trustee, except that where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem such
Securities, provided funds are deposited with it for such purpose. Any moneys
theretofore or thereafter received by the Trustee shall, during the continuance
of such Event of Default, be held in
<PAGE> 61
50
trust for the benefit of the Holders and applied in the manner set forth in
Section 7.06; provided, however, that in case such Event of Default shall have
been waived as provided herein or otherwise cured, such moneys shall thereafter
be held and applied in accordance with the provisions of this Article.
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of, premium, if any, and interest
on the Securities of such series in accordance with the terms of the Securities
of such series, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 3.01 with respect to any series
of Securities, any interest due on Bearer Securities on or before Maturity shall
be payable only outside the United States upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If Securities of a series
may be issuable as Bearer Securities, the Company will maintain (A) in the
Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served, (B) subject to any
laws or regulations applicable thereto, in a Place of
<PAGE> 62
51
Payment for that series which is located outside the United States, an office or
agency where Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Securities of that series pursuant to Section 5.04); provided, however, that if
the Securities of that series are listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in London or Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange, and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for such series located
outside the United States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Principal Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment (including payment of any additional amounts payable on Bearer
Securities of that series pursuant to Section 5.04) at the place specified for
the purpose as contemplated by Section 3.01, and the Company hereby appoints the
Trustee as its agent to receive such respective presentations, surrenders,
notices and demands.
Except as otherwise provided in the form of Bearer Security of
any particular series pursuant to the provisions of this Indenture, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, payment of principal of and any
premium and interest denominated in Dollars (including
<PAGE> 63
52
additional amounts payable in respect thereof) on any Bearer Security may be
made at an office or agency of, and designated by, the Company located in the
United States if (but only if) payment of the full amount of such principal,
premium, interest or additional amounts in Dollars at all offices outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or similar
restrictions and the Trustee receives an Opinion of Counsel that such payment
within the United States is legal. Unless otherwise provided as contemplated by
Section 3.01 with respect to any series of Securities, at the option of the
Holder of any Bearer Security or related coupon, payment may be made by check in
the currency designated for such payment pursuant to the terms of such Bearer
Security presented or mailed to an address outside the United States or by
transfer to an account in such currency maintained by the payee with a bank
located outside the United States.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of such purposes specified above in this
Section and may constitute and appoint one or more Paying Agents for the payment
of such Securities, in one or more other cities, and may from time to time
rescind such designations and appointments; provided, however, that no such
designation, appointment or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment for
Securities of any series 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 office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints: (i) The
Chase Manhattan Bank, as its Paying Agent in The City of New York with respect
to all series of Securities having a Place of Payment in The City of New York
and (ii) the [ ] at its principal office as its Paying Agent in the
[ ] with respect to all series of Securities having a
Place of Payment in the [ ].
SECTION 5.03. Money for Security Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the
<PAGE> 64
53
benefit of the Persons entitled thereto a sum sufficient to pay the principal,
premium or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, at or prior to the opening of business on
each due date of the principal of, premium, if any, or interest on any
Securities of such series and any appurtenant coupons, deposit with a Paying
Agent a sum sufficient to pay the principal, premium or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the
Trustee for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee subject to
the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series and any
appurtenant coupons in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal, premium or interest on the Securities of such
series or any appurtenant coupons; and
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which
<PAGE> 65
54
such sums were held by the Company or such Paying Agent, and, upon such payments
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a
series provide for the payment of additional amounts, the Company will pay to
the Holder of any Security of any series or any coupon appertaining thereto
additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
<PAGE> 66
55
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made), and at least 10 days prior to each
date of payment of principal (and premium, if any) or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
Principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of that series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or reasonable expense incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 5.05. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate (which need not comply with Section 1.02)
(provided, however, that one of the signatories of which shall be the Company's
principal executive officer, principal financial officer or principal accounting
officer) stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year
and of performance under this Indenture and under the terms of the
Securities has been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its
<PAGE> 67
56
obligations and complied with all conditions and covenants under this
Indenture and under the terms of the Securities throughout such year,
or, if there has been a default in the fulfillment of any such
obligation, condition or covenant specifying each such default known to
him and the nature and status thereof, and (b) no event has occurred
and is occurring which is, or after notice or lapse of time or both
would become, an Event of Default, or if such an event has occurred and
is continuing, specifying such event known to him and the nature and
status thereof.
For purposes of this Section, compliance or default shall be
determined without regard to any period of grace or requirement of notice
provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and
Franchises. So long as any of the Securities shall be Outstanding, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises to carry on its
business; provided, however, that nothing in this Section 5.06 shall (i) require
the Company to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders, (ii) prevent any
consolidation or merger of the Company, or any conveyance or transfer of its
property and assets substantially as an entirety to any person, permitted by
Article Ten, or (iii) prevent the liquidation or dissolution of the Company
after any conveyance or transfer of its property and assets substantially as an
entirety to any person permitted by Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
SECTION 6.01. Company To Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee)
<PAGE> 68
57
or the Security Registrar, if other than the Trustee, as to the names and
addresses of the Holders of Securities as of such March 1 and September 1, and
(ii) at such other times as the Trustee may request in writing, within 30 days
after receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
requested to be furnished; provided, however, that if and so long as the Trustee
is the Security Registrar for Securities of a series, no such list need be
furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to
Holders. (i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(a) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 6.02(i), or
(b) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 6.02(i), and as to
the approximate cost of mailing to such
<PAGE> 69
58
Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or all Holders of
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
6.02(i), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such series or all Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders of Securities with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise, the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(iii) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with Section 6.02(ii), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section
6.02(ii).
<PAGE> 70
59
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May
15 of each year commencing with the year 1997, the Trustee shall mail to each
Holder reports concerning the Trustee and its action under the Indenture as may
be required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by
mail (1) to all Holders of Registered Securities, as their names and addresses
appear in the Security Register and (2) to such Holders of Bearer Securities as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, and also with the Commission. The Company
will notify the Trustee when any Securities are listed on any securities
exchange.
SECTION 6.04. Reports by Company. The Company will:
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
<PAGE> 71
60
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner
and to the extent provided in Section 6.03(ii), within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (i) and (ii) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default. "Event of Default", with
respect to any series of Securities, wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless it is either inapplicable to
a particular series or it is specifically deleted or modified in the
supplemental indenture or Board Resolution under which such series of Securities
is issued or in the form of Security for such series:
(i) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
<PAGE> 72
61
(ii) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(iii) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(iv) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company
in an involuntary case under the Federal Bankruptcy Code, adjudging the
Company a bankrupt, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under the Federal Bankruptcy Code or any other
applicable Federal or State bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the Company, or of
substantially all of its properties, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(v) the institution by the Company of proceedings to be
adjudicated a bankrupt, or the consent of the Company to the
institution of bankruptcy proceedings against it, or the filing by the
Company of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable
Federal or State bankruptcy, insolvency or similar law, or the consent
by the Company to the filing of any such petition or to the appointment
of a receiver, liquidator, custodian, assignee, trustee,
<PAGE> 73
62
sequestrator (or other similar official) of the Company or of
substantially all of its properties; or
(viii) any other Event of Default provided with respect to
Securities of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to any series of Securities for
which there are Securities Outstanding occurs and is continuing, then, and in
every such case, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series may declare the principal of
all the Securities of such series (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) to be immediately due and payable, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of such series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences, and any Event of Default giving rise to such declaration shall not
be deemed to have occurred, if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue installments of interest on all
Securities of such series,
(b) the principal of and premium, if any, on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor by the terms of the
Securities of such series,
(c) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the
rate or rates
<PAGE> 74
63
prescribed therefor by the terms of the Securities
of such series, and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, the Security
Registrar, any Paying Agent, and their agents and counsel and
all other amounts due the Trustee under Section 8.07; and
(ii) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 7.13.
No such recession shall affect any subsequent default or
impair any right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(i) default is made in the payment of any instalment of
interest on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days; or
(ii) default is made in the payment of the principal of or
premium, if any, on any Security of any series at the Maturity thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue installments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
<PAGE> 75
64
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of any Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07) and of the
Holders allowed in such judicial proceeding; and
<PAGE> 76
65
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, 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 for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon 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 of a
Security or coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or under the
Securities of any series, or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.
SECTION 7.06. Application of Money Collected. Any money
collected by the Trustee with respect to a series of Securities pursuant to this
Article shall be applied in the following order, at the date or dates fixed by
the Trustee, and, in case of the distribution of such money on account of
principal, premium, if any, or interest, upon presentation of the Securities of
such series or coupons
<PAGE> 77
66
appertaining thereto, if any, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 8.07;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities of such series and coupons for principal, premium, if
any, and interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on Securities of
such series and coupons, if any, for principal, premium, if any, and
interest, respectively. The Holders of each series of Securities
denominated in ECU, any other composite currency or a Foreign Currency
and any matured coupons relating thereto shall be entitled to receive a
ratable portion of the amount determined by the Exchange Rate Agent by
converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of Securities
in the currency in which such series of Securities is denominated into
Dollars at the Exchange Rate as of the Business Day immediately
preceding the date of payment; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security
of any series or any related coupons shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities of
such series;
(ii) the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
<PAGE> 78
67
(iii) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(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) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
SECTION 7.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal of, premium, if
any, and (subject to Section 3.07) interest on such Security or payment of such
coupon on the respective Stated Maturities expressed in such Security or coupon
(or, in the case of redemption or repayment, on the Redemption Date or Repayment
Date) and to institute suit for the enforcement of such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and
<PAGE> 79
68
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
lost, destroyed or stolen Securities or coupons in the last paragraph of Section
3.06, 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 7.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon 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 or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 7.12. Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series; provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
(ii) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction;
(iii) subject to the provisions of Section 8.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee,
<PAGE> 80
69
determine that the proceeding so directed would involve the Trustee in
personal liability; and
(iv) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of, premium, if any, or
interest on any Security of such series; or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder of
Securities or coupons for the
<PAGE> 81
70
enforcement of the payment of the principal of, premium, if any, or interest on
any Security or payment of any coupon on or after the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities. (i) Except
during the continuance of an Event of Default with respect to any series of
Securities:
(a) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to Securities of such series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee with
respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificate
or opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not
<PAGE> 82
71
they conform as to form to the requirements of the Indenture.
(ii) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(iii) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that:
(a) this Subsection shall not be construed to
limit the effect of Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to Securities of
such series; and
(d) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(iv) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
<PAGE> 83
72
SECTION 8.02. Notice of Default. Within 90 days after the
occurrence of any default hereunder with respect to Securities of any series,
the Trustee shall transmit by mail to all Holders of Securities of such series
entitled to receive reports pursuant to Section 6.03(ii) notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of, premium, if any, or interest on any Security of such
series, or any related coupons or in the payment of any sinking fund instalment
with respect to Securities of such series the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided further that
in the case of any default of the character specified in Section 7.01(iii) with
respect to Securities of such series, no such notice to Holders of Securities of
such series shall be given until at least 90 days after the occurrence thereof.
For the purpose of this Section, the term "default", with respect to Securities
of any series, means any event which is, or after notice or lapse of time, or
both, would become, an Event of Default with respect to Securities of such
series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise
provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(iii) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee
<PAGE> 84
73
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, security or other paper or document, but the
Trustee, in its discretion, may make further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney and, if so requested to do so by any
of the Holders, at the sole cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(viii) the Trustee shall not be charged with knowledge of any
default (as defined in Section 8.02) or Event of Default unless either
(1) a Responsible Officer of the Trustee shall have actual knowledge of
such default or Event of Default or (2) written notice of such default
or Event of Default shall have been given to the Trustee by the Company
or any Holder;
<PAGE> 85
74
(ix) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture; and
(x) in the event that the Trustee is also acting as Paying
Agent, Authenticating Agent or Security Registrar hereunder, the rights
and protections afforded to the Trustee pursuant to this Article Eight
shall also be afforded to such Paying Agent, Authenticating Agent or
Security Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 8.08 and 8.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 8.07. Compensation and Reimbursement. The Company
agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
<PAGE> 86
75
(ii) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of, premium, if any, or
interest on particular Securities.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 7.01(iv) or (v), the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07
and any lien arising hereunder shall survive the resignation or removal of any
Trustee, the discharge of the Company's obligations pursuant to Article Eleven
of this Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in
<PAGE> 87
76
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. To the extent permitted by the Trust Indenture Act, the
Trustee shall not be deemed to have a conflicting interest with respect to the
Securities of any series by virtue of being Trustee with respect to the
Securities of any particular series of Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee with respect to each series of Securities
hereunder which shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $5,000,000, subject to supervision or
examination by Federal or State authority; provided, however, that if Section
310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and
doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of
Successor. (i) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 8.11.
<PAGE> 88
77
(ii) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the resigning Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with
respect to any series of Securities after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security of such series for at least six months; or
(b) the Trustee shall cease to be eligible under Section 8.09
with respect to any series of Securities and shall fail to resign after
written request therefor by the Company or by any Holder of Securities
of such series; or
(c) the Trustee shall become incapable of acting with respect
to any series of Securities or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
<PAGE> 89
78
(v) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a vacancy
shall occur in the office of Trustee with respect to any series of Securities
for any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
8.11. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to such series
of Securities shall be appointed by the Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee with respect to such series, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to such series and to that extent
supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so
appointed by the Company or the Holders of Securities of such series and
accepted appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to such series.
(vi) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities of such series as their names
and addresses appear in the Security Register and, if Securities of such series
are issuable as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment for the Securities of such series
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Principal Corporate Trust Office.
<PAGE> 90
79
SECTION 8.11. Acceptance of Appointment by Successor. (i) In
the case of the appointment hereunder of a successor Trustee with respect to any
series of Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective with respect to all or any series as to
which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of such retiring Trustee with respect to all or any such series; and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to all or any
such series, subject nevertheless to its lien, if any, provided for in Section
8.07.
(ii) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (a) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (b) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (c) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee
<PAGE> 91
80
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject
nevertheless to its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of
Securities shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible with respect to such
series under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder; provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same
<PAGE> 92
81
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
any claims as a creditor against the Company (or any such other obligor). A
Trustee that has resigned or been removed shall be subject to and comply with
said Section 311 to the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The
Trustee may appoint an Authenticating Agent or Agents, which may include any
Affiliate of the Company, with respect to one or more series of Securities. Such
Authenticating Agent or Agents at the option of the Trustee shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued
upon original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Whenever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication or the delivery of
Securities to the Trustee for authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent, a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent and delivery of Securities to the
Authenticating Agent on behalf of the Trustee. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$5,000,000 and subject to supervision or examination by Federal or State
authority. Notwithstanding the foregoing, an Authenticating Agent located
outside the United States may be appointed by the Trustee if previously approved
in writing by the Company and if such Authenticating Agent meets the minimum
capitalization requirements of this Section 8.14. If such Authenticating Agent
publishes reports of condition at least annually,
<PAGE> 93
82
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent; provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
<PAGE> 94
83
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as
Trustee,
by
------------------------
as Authenticating Agent
by
------------------------
Authorized Signatory
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holder of any Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or
Person to the Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment
by another corporation as a successor Trustee hereunder with respect to
one or more series of Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit
of the Holders of Securities of all or any series of Securities or
coupons (and if such covenants are to be for the benefit of less than
all series of Securities or coupons, stating that such covenants are
<PAGE> 95
84
expressly being included solely for the benefit of such series), or to
surrender any right or power herein conferred upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under the Indenture; provided that such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(v) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of
this Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities,
to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided
any such action shall not adversely affect the interests of the Holders
of Securities of any series or any related coupons in any material
respect; or
(vii) to add to, change or eliminate any of the provisions of
this Indenture; provided that any such addition, change or elimination
(a) shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is adversely affected by such change in or elimination
of such provision or (b) shall not apply to any Securities Outstanding;
or
(viii) to establish the form or terms of Securities of any
series as permitted by Sections 2.02 and 3.01; or
<PAGE> 96
85
(ix) to add to or change any provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by
the terms thereof; or
(xi) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; provided such action shall not
adversely affect the interest of Holders of Securities of any series or
any appurtenant coupons in any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture or indentures (acting as one class), by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(i) change the Maturity of the principal of, or the Stated
Maturity of any instalment of interest (or premium, if any) on, any
Security, or reduce the principal amount thereof or any premium thereon
or the rate of interest thereon, or change the obligation of the
Company to pay additional amounts pursuant to Section 5.04 (except as
contemplated by Section 10.01(i) and permitted by Section 9.01), or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, or
change the method of calculating interest thereon or the coin or
currency in which any Security (or premium, if any, thereon) or the
interest thereon is payable, or reduce the minimum rate
<PAGE> 97
86
of interest thereon, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date);
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture or the consent of whose
Holders is required for any waiver of certain defaults hereunder and
their consequences) provided for in this Indenture or reduce the
requirements of Section 15.04 for a quorum;
(iii) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 5.02; or
(iv) modify any of the provisions of this Section or Section
7.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived.
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 the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's
<PAGE> 98
87
own rights, liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, premium, if
any, and
<PAGE> 99
88
interest (including all additional amounts, if any, payable pursuant to
Section 5.04) on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(ii) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 10.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
10.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer 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. In the event of any such conveyance or
transfer, the Company as the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and may be dissolved, wound up
and liquidated at any time thereafter.
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
<PAGE> 100
89
acknowledging satisfaction and discharge of this Indenture, when:
(i) either
(a) all Securities theretofore authenticated and
delivered (other than (1) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities
and maturing after such exchange, whose surrender is not
required or has not been waived as provided in Section 3.05,
(2) coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 4.06,
(3) coupons appertaining to Bearer Securities surrendered for
repayment pursuant to Section 15.03 and maturing after the
Repayment Date, whose surrender has been waived as provided in
Section 15.03, (4) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06, and (5) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 5.03) have been delivered to the Trustee
for cancellation; or
(b) all such Securities not theretofore delivered to
the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Maturity within one year, or
(3) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (b) (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee, as trust funds in
trust for the purpose, an amount sufficient to pay and discharge the
entire indebtedness on such Securities and coupons not
<PAGE> 101
90
theretofore delivered to the Trustee for cancellation, for principal,
premium, if any, and interest to the date of such deposit (in the ease
of Securities which have become due and payable), or to the Maturity or
Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive.
SECTION 11.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 5.03, all money deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying
Agent is unable to apply any money in accordance with Section 11.02 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
<PAGE> 102
91
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability. No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security or coupon, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or coupons or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Securities.
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
<PAGE> 103
92
The minimum amount of any sinking fund payment provided for by
the terms of 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 Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining thereto
and (ii) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee and the Security Registrar
an Officers' Certificate specifying (i) the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, (ii) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 13.02, and (iii) that none of such
Securities has theretofore been so credited and stating the basis for such
credit, and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each
<PAGE> 104
93
sinking fund payment date the Security Registrar shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 4.03 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 4.04.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 4.06 and 4.07 and shall
be subject to Section 4.08.
ARTICLE FOURTEEN
Repayment at the Option of Holders
SECTION 14.01. Applicability of Article. Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Securities of such series) in
accordance with this Article.
SECTION 14.02. Repayment of Securities. Each Security which is
subject to repayment in whole or in part at the option of the Holder thereof on
a Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 14.03. Exercise of Option, Notice. Each Holder
desiring to exercise such Holder's option for repayment shall, as conditions to
such repayment, surrender the Security to be repaid in whole or in part together
with written notice of the exercise of such option at any office or agency of
the Company in a Place of Payment, not less than 30 nor more than 45 days prior
to the Repayment Date; provided, however, that surrender of Bearer Securities
together with written notice of exercise of such option shall be made at an
office or agency located outside the United States except as otherwise provided
in Section 5.02. Such notice, which shall be irrevocable, shall specify the
principal amount of such Security to be repaid, which shall be equal to the
minimum authorized denomination for such Security or an integral multiple
thereof, and shall identify the Security to be repaid and, in the case of a
partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the
<PAGE> 105
94
principal of the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series and
tenor, of any authorized denomination specified in the foregoing notice, in an
aggregate principal amount equal to any portion of the principal of the
Registered Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series and tenor of any
authorized denomination or denominations specified in the foregoing notice, in
an aggregate principal amount equal to any portion of the principal of the
Security so surrendered which is not to be repaid; provided, however, that the
issuance of a Registered Security therefor shall be subject to applicable laws
and regulations, including provisions of the United States Federal income tax
laws and regulations in effect at the time of the exchange; neither the Company,
the Trustee nor the Security Registrar shall issue Registered Securities for
Bearer Securities if it has received an Opinion of Counsel that as a result of
such issuance the Company would suffer
<PAGE> 106
95
adverse consequences under the United States Federal income tax laws then in
effect and the Company has delivered to the Trustee a Company Order directing
the Trustee not to make such issuances thereafter unless and until the Trustee
receives a subsequent Company Order to the contrary. The Company shall deliver
copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the repayment of Securities shall
relate, in the case of any Security repaid or to be repaid only in part, to the
portion of the principal of such Security which has been or is to be repaid.
SECTION 14.04. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders thereof who give notice and surrender their
Securities in accordance with Section 14.03.
SECTION 14.05. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 14.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price, in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate prescribed therefor by such Securities from time to time until payment
in full of such principal amount.
<PAGE> 107
96
ARTICLE FIFTEEN
Meetings of Holders of Securities
SECTION 15.01. Purposes for Which Meetings May Be Called. If
Securities of a series are issuable in whole or in part as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
by this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 15.02. Call, Notice and Place of Meetings. (i) The
Trustee may at any time call a meeting of Holders of Securities of any series
issuable in whole or in part as Bearer Securities for any purpose specified in
Section 15.01, to be held at such time and at such place in the City of
Columbus, Ohio, the Borough of Manhattan, The City of New York, or in London as
the Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any such series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 15.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be, may
determine the time and the place in the City of Columbus, Ohio, the Borough of
Manhattan, The City of New York, or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (i)
of this Section.
<PAGE> 108
97
SECTION 15.03. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 15.04. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of a greater percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such greater
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence of
a quorum in any other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.02(i), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to Section 9.02, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders
<PAGE> 109
98
of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such greater percentage in
principal amount of the Outstanding Securities of that series; and provided
further that, except as limited by the provisos to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a majority
in principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 15.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the
<PAGE> 110
99
person executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 15.02(ii), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 15.06. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of
<PAGE> 111
100
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 15.02 and, if applicable, Section 15.04. Each copy shall be
signed and verified by the affidavits of the permanent chairperson and secretary
of the meeting and one such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
Miscellaneous
SECTION 16.01. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
The Chase Manhattan Bank, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
<PAGE> 112
101
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
BANC ONE CORPORATION,
by
--------------------------
Name:
Title:
[Seal]
Attest: [CORPORATE SEAL]
- -----------------------
Assistant Secretary
THE CHASE MANHATTAN BANK, as
Trustee,
by
--------------------------
Name:
Title:
[Seal]
Attest: [CORPORATE SEAL]
- -----------------------
<PAGE> 113
STATE OF OHIO, )
) ss.:
COUNTY OF FRANKLIN )
On this day of February, 1997, before me personally came to me
known, , who, being by me duly sworn, did depose and say that he
resides at [ ]; that he is [ ] of BANC ONE
CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the corporate 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
[Notarial Seal]
<PAGE> 114
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this day of February, 1997, before me personally
appeared , to me known, who, being by me duly sworn, did depose and
say that he resides at ; that he is a of THE CHASE
MANHATTAN BANK, one of the parties described in and which executed the foregoing
instrument; that he knows the corporate 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
[Notarial Seal]
<PAGE> 115
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
...................
[Insert title or sufficient description of
Securities to be delivered]
This is to certify that the above-captioned Securities are not
being acquired by or on behalf of a United States person, or, if a beneficial
interest in the Securities is being acquired by or on behalf of a United States
person, that such United States person is a financial institution within the
meaning of Section 1.165-12(c)(1)(v) of the United States Treasury regulations
which agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the Internal Revenue Code of 1986, as amended and the regulations thereunder.
If the undersigned is a dealer, the undersigned agrees to obtain a similar
certificate from each person entitled to delivery of any of the above-captioned
Securities in bearer form purchased from it; provided, however, that, if the
undersigned has actual knowledge that the information contained in such a
certificate is false, the undersigned will not deliver a Security in temporary
or definitive bearer form to the person who signed such certificate
notwithstanding the delivery of such certificate to the undersigned.
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 and any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source, and "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as
to beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities.
<PAGE> 116
We understand that this certificate is required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: 19
[To be dated no earlier than
15 days prior to the Exchange
Date]
[Name of Person Entitled to
Receive Bearer Security)
________________________________
(Authorized Signatory)
Name:
Title:
<PAGE> 117
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. IN
CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY
CERTIFICATE
...................
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $____ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: , 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 S.A.]
By__________________________________
<PAGE> 118
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
...................
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date on [Insert
Date], the undersigned, which is a holder of an interest in the temporary global
Security representing the above Securities, is not a United States person.
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 and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date will
be paid to each of the persons appearing in our records as being entitled to
interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment Date
to the effect that the beneficial owner of such portion with respect to which
interest is to be paid on such date either is not a United States person or is a
United States person which is a financial institution which has provided an
Internal Revenue Service Form W-9 or is an exempt recipient as defined in United
States Treasury Regulations Section 1.6049-4(c)(1)(ii). We undertake to retain
certificates received from our member organizations in connection herewith for
four years from the end of the calendar year in which such certificates are
received.
<PAGE> 119
The foregoing reflects any advice received subsequent to the
date of any certificate stating that the statements contained in such
certificate are no longer correct.
Dated: , 19
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euroclear System]
[CEDEL S.A.]
By_________________________________
<PAGE> 120
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
...................
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the
temporary global Security representing the above-captioned Securities and held
by you for our account is beneficially owned by a United States person or, if
any portion thereof held by you for our account is beneficially owned by a
United States person, such United States person is a financial institution
within the meaning of Section 1.165-12(c)(1)(v) of the United States Treasury
regulations which agrees to comply with Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder, and
certifies that either it has provided an Internal Revenue Service Form W-9 or is
an exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United
States Treasury regulations.
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 and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the Interest Payment Date on [Insert
Date] as to any such portion of such temporary global Security.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this
<PAGE> 121
certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
[To be dated on or after the 15th
day before the relevant Interest
Payment Date]
[Name of Account Holder]
________________________________
(Authorized Signatory)
Name:
Title:
<PAGE> 1
================================================================================
BANC ONE CORPORATION
AND
THE CHASE MANHATTAN BANK
TRUSTEE
---------------
INDENTURE
Dated as of March 3, 1997
---------------
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE
Definitions and Other Provisions of General Application
<S> <C> <C>
SECTION 1.01. Definitions.................................................... 2
"this Indenture" and certain other
terms..................................................... 2
"Act".......................................................... 3
"Affiliate".................................................... 3
"Authenticating Agent"......................................... 3
"Authorized Newspaper"......................................... 3
"Authorized Officer"........................................... 3
"Bearer Security".............................................. 3
"Board of Directors"........................................... 3
"Board Resolution"............................................. 3
"Business Day"................................................. 4
"CEDEL; CEDEL S.A."............................................ 4
"Commission"................................................... 4
"Common Depositary"............................................ 4
"Company"...................................................... 4
"Company Request" and "Company
Order".................................................... 4
"corporation".................................................. 4
"coupon"....................................................... 4
"Default"...................................................... 4
"Defaulted Interest"........................................... 4
"Depositary"................................................... 5
"Designated Currency".......................................... 5
"Dollar"....................................................... 5
"ECU".......................................................... 5
"Euroclear".................................................... 5
"European Communities"......................................... 5
"Event of Default"............................................. 5
"Exchange Act"................................................. 5
"Exchange Rate"................................................ 5
"Exchange Rate Officer's
Certificate".............................................. 5
"Existing Subordinated Indebtedness"........................... 6
"Foreign Currency"............................................. 6
"General Obligations".......................................... 6
"Global Exchange Rate"......................................... 7
</TABLE>
- ----------
(1) This Table of Contents is not part of the Indenture.
<PAGE> 3
Contents, p. 2
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
"Global Security"............................................ 7
"Holder"..................................................... 7
"interest"................................................... 7
"Interest Payment Date"...................................... 7
"Maturity"................................................... 7
"Officers' Certificate"...................................... 7
"Opinion of Counsel"......................................... 7
"Original Issue Discount Security"........................... 8
"Outstanding"................................................ 8
"Paying Agent"............................................... 9
"Person"..................................................... 9
"Place of Payment"........................................... 9
"Predecessor Security"....................................... 9
"Principal Corporate Trust Office"........................... 9
"Principal Paying Agent"..................................... 9
"Redemption Date"............................................ 10
"Redemption Price"........................................... 10
"Registered Security"........................................ 10
"Regular Record Date"........................................ 10
"Remarketing Entity"......................................... 10
"Repayment Date"............................................. 10
"Repayment Price"............................................ 10
"Responsible Officer"........................................ 10
"Security"; "Securities" .................................... 10
"Security Register".......................................... 11
"Security Registrar"......................................... 11
"Senior Indebtedness"........................................ 11
"Special Record Date"........................................ 11
"Stated Maturity"............................................ 11
"Subsidiary of the Company" or
"Subsidiary"............................................ 11
"Trustee".................................................... 12
"Trust Indenture Act" or "TIA"............................... 12
"United States".............................................. 12
"United States Alien"........................................ 12
"vice president"............................................. 12
SECTION 1.02. Compliance Certificates and Opinions......................... 12
SECTION 1.03. Form of Documents Delivered to
Trustee................................................. 13
SECTION 1.04. Acts of Holders.............................................. 14
SECTION 1.05. Notices, etc., to Trustee and
Company................................................. 17
SECTION 1.06. Notices to Holders; Waiver................................... 18
SECTION 1.07. Language of Notices, Etc..................................... 19
SECTION 1.08. Conflict with Trust Indenture Act............................ 19
</TABLE>
<PAGE> 4
Contents, p. 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1.09. Effect of Headings and Table of
Contents................................................ 20
SECTION 1.10. Successors and Assigns....................................... 20
SECTION 1.11. Separability Clause.......................................... 20
SECTION 1.12. Benefits of Indenture........................................ 20
SECTION 1.13. Legal Holidays............................................... 20
SECTION 1.14. Governing Law................................................ 21
ARTICLE TWO
Security Forms
SECTION 2.01. Form Generally............................................... 21
SECTION 2.02. Form of Securities........................................... 21
SECTION 2.03. Form of Trustee's Certificate of
Authentication.......................................... 22
SECTION 2.04. Global Securities............................................ 22
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms.............................................. 23
SECTION 3.02. Denominations................................................ 27
SECTION 3.03. Execution, Authentication, Delivery
and Dating.............................................. 27
SECTION 3.04. Temporary Securities......................................... 31
SECTION 3.05. Registration, Registration of
Transfer and Exchange................................... 35
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.............................................. 40
SECTION 3.07. Payment of Interest; Interest
Rights Preserved........................................ 41
SECTION 3.08. Persons Deemed Owners........................................ 44
SECTION 3.09. Cancellation................................................. 44
SECTION 3.10. Computation of Interest...................................... 45
SECTION 3.11. Forms of Certification....................................... 45
SECTION 3.12. Judgments.................................................... 46
SECTION 3.13. CUSIP Numbers................................................ 46
</TABLE>
<PAGE> 5
Contents, p. 4
<TABLE>
<CAPTION>
Page
----
ARTICLE FOUR
Redemption of Securities
<S> <C> <C>
SECTION 4.01. Applicability of Article..................................... 47
SECTION 4.02. Election to Redeem; Notice to
Trustee................................................. 47
SECTION 4.03. Selection by Security Registrar of
Securities to be Redeemed............................... 47
SECTION 4.04. Notice of Redemption......................................... 48
SECTION 4.05. Deposit of Redemption Price.................................. 49
SECTION 4.06. Securities Payable on Redemption
Date.................................................... 49
SECTION 4.07. Securities Redeemed in Part.................................. 50
SECTION 4.08. Redemption Suspended During Event of
Default................................................. 51
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and
Interest................................................ 51
SECTION 5.02. Maintenance of Office or Agency.............................. 52
SECTION 5.03. Money for Security Payments to Be
Held in Trust........................................... 54
SECTION 5.04. Additional Amounts........................................... 56
SECTION 5.05. Statement as to Compliance................................... 57
SECTION 5.06. Maintenance of Corporate Existence,
Rights and Franchises................................... 57
ARTICLE SIX
Holder's Lists and Reports
by Trustee and Company
SECTION 6.01. Company to Furnish Trustee Names
and Addresses of Holders................................ 58
SECTION 6.02. Preservation of Information;
Communications to Holders............................... 58
SECTION 6.03. Reports by Trustee........................................... 60
SECTION 6.04. Reports by Company........................................... 61
</TABLE>
<PAGE> 6
Contents, p. 5
<TABLE>
<CAPTION>
Page
----
ARTICLE SEVEN
Remedies
<S> <C> <C>
SECTION 7.01. Events of Default............................................ 62
SECTION 7.02. Acceleration of Maturity; Rescission
and Annulment........................................... 63
SECTION 7.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.............................. 64
SECTION 7.04. Trustee May File Proofs of Claim............................. 65
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities................................ 66
SECTION 7.06. Application of Money Collected............................... 66
SECTION 7.07. Limitation on Suits.......................................... 67
SECTION 7.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest............................................ 69
SECTION 7.09. Restoration of Rights and Remedies........................... 69
SECTION 7.10. Rights and Remedies Cumulative............................... 69
SECTION 7.11. Delay or Omission Not Waiver................................. 70
SECTION 7.12. Control by Noteholders....................................... 70
SECTION 7.13. Waiver of Past Defaults...................................... 70
SECTION 7.14. Undertaking for Costs........................................ 71
SECTION 7.15. Waiver of Stay or Extension Laws............................. 71
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities.......................... 72
SECTION 8.02. Notice of Default............................................ 73
SECTION 8.03. Certain Rights of Trustee.................................... 74
SECTION 8.04. Not Responsible for Recitals or
Issuance of Notes....................................... 76
SECTION 8.05. May Hold Securities.......................................... 76
SECTION 8.06. Money Held in Trust.......................................... 76
SECTION 8.07. Compensation and Reimbursement............................... 76
SECTION 8.08. Disqualification; Conflicting
Interests............................................... 77
SECTION 8.09. Corporate Trustee Required;
Eligibility............................................. 77
SECTION 8.10. Resignation and Removal; Appointment
of Successor............................................ 78
SECTION 8.11. Acceptance of Appointment by
Successor............................................... 80
</TABLE>
<PAGE> 7
Contents, p. 6
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 8.12. Merger, Conversion, Consolidation
or Succession to Business of
Trustee................................................. 82
SECTION 8.13. Preferential Collection of Claims
against Company......................................... 82
SECTION 8.14. Appointment of Authenticating Agents......................... 82
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without
Consent of Holders...................................... 85
SECTION 9.02. Supplemental Indentures With
Consent of Holders...................................... 87
SECTION 9.03. Execution of Supplemental Indentures......................... 88
SECTION 9.04. Effect of Supplemental Indentures............................ 88
SECTION 9.05. Conformity with Trust Indenture Act.......................... 88
SECTION 9.06. Reference in Securities to
Supplemental Indentures................................. 89
SECTION 9.07. Subordination Unimpaired..................................... 89
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only
on Certain Terms........................................ 89
SECTION 10.02. Successor Corporation Substituted............................ 90
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of
Indenture............................................... 90
SECTION 11.02. Application of Trust Money................................... 92
SECTION 11.03. Reinstatement................................................ 92
</TABLE>
<PAGE> 8
Contents, p. 7
<TABLE>
<CAPTION>
Page
----
ARTICLE TWELVE
Immunity of Incorporations, Stockholders,
Officers and Directors
<S> <C> <C>
SECTION 12.01. Exemption from Individual Liability........................ 93
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article................................... 93
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities.............................. 94
SECTION 13.03. Redemption of Securities for
Sinking Fund.......................................... 94
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement to Subordinate................................... 95
SECTION 14.02. Distribution on Dissolution,
Liquidation and Reorganization;
Subrogation of Securities............................. 95
SECTION 14.03. Payments on Securities Prohibited
During Event of Default under
Senior Indebtedness................................... 99
SECTION 14.04. Payments on Securities Permitted........................... 100
SECTION 14.05. Authorization of Holders to
Trustee to Effect Subordination....................... 100
SECTION 14.06. Notice To Trustee.......................................... 101
SECTION 14.07. Right of Trustee to Hold Senior
Indebtedness or General
Obligations........................................... 101
SECTION 14.08. Article Fourteen Not to Prevent
Defaults or Events of Default......................... 101
SECTION 14.09. Securities to Rank Pari Passu with
Existing Subordinated
Indebtedness; Payment of Proceeds
in Certain Cases...................................... 101
</TABLE>
<PAGE> 9
Contents, p. 8
<TABLE>
<CAPTION>
Page
----
ARTICLE FIFTEEN
Repayment at the Option of Holders
<S> <C> <C>
SECTION 15.01. Applicability of Article................................... 104
SECTION 15.02 Repayment of Securities.................................... 104
SECTION 15.03. Exercise of Option; Notice................................. 104
SECTION 15.04. Election of Repayment by
Remarketing Entities.................................. 106
SECTION 15.05. Securities Payable on the
Repayment Date........................................ 106
ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be
Called................................................ 107
SECTION 16.02. Call, Notice and Place of Meetings......................... 107
SECTION 16.03. Persons Entitled to Vote at
Meetings.............................................. 108
SECTION 16.04. Quorum; Action............................................. 108
SECTION 16.05. Determination of Voting Rights;
Conduct and Adjournment of
Meetings.............................................. 109
SECTION 16.06. Counting Votes and Recording
Action of Meetings.................................... 110
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts............................................... 111
TESTIMONIUM................................................................ 112
SIGNATURES AND SEALS....................................................... 112
ACKNOWLEDGMENTS............................................................ 113
</TABLE>
EXHIBIT A. Form of Certificate to be Given by
Person Entitled to Receive Bearer
Security
EXHIBIT B. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. in
Connection with the Exchange of a
Portion of a Temporary Global Security
<PAGE> 10
Contents, p. 9
Page
----
EXHIBIT C. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. to Obtain
Interest Prior to an Exchange Date
EXHIBIT D. Form of Certificate to be Given by
Beneficial Owners to Obtain Interest
Prior to an Exchange Date
<PAGE> 11
Contents, p. 10
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
<TABLE>
<CAPTION>
Reflected in Indenture
----------------------
Section
-------
<S> <C>
TIA
Section 310(a)(1) ..................................... 8.09
(a)(2) ..................................... 8.09
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(a)(5) ..................................... 8.09
(b) ..................................... 8.08
8.10
(c) ..................................... Not Applicable
Section 311(a) ..................................... 8.13
(b) ..................................... 8.13
Section 312(a) ..................................... 6.01
6.02(i)
(b) ..................................... 6.02(ii)
(c) ..................................... 6.02(iii)
Section 313(a) ..................................... 6.03(i)
(b) ..................................... 6.03(ii)
(c) ..................................... 6.03(i), (ii) and (iii)
(d) ..................................... 6.03(iii)
Section 314(a) ..................................... 6.04
5.05
(b) ..................................... Not Applicable
(c)(1) ..................................... 1.02
(c)(2) ..................................... 1.02
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 1.02
(f) ..................................... Not Applicable
Section 315(a) ..................................... 8.01(i)
8.01(iii)
(b) ..................................... 8.02
(c) ..................................... 8.01(ii)
(d) ..................................... 8.01
(d)(1) ..................................... 8.01(i)
(d)(2) ..................................... 8.01(iii)(b)
(d)(3) ..................................... 8.01(iii)(c)
(e) ..................................... 7.14
Section 316(a) ..................................... 1.01
</TABLE>
<PAGE> 12
Contents, p. 11
<TABLE>
<CAPTION>
Reflected in Indenture
----------------------
Section
-------
<S> <C>
Section 316(a)(1)(A) ..................................... 7.02
7.12
(a)(1)(B) ..................................... 7.13
(a)(2) ..................................... Not Applicable
(b) ..................................... 7.08
(c) ..................................... 1.04(viii)
Section 317(a)(1) ..................................... 7.03
(a)(2) ..................................... 7.04
(b) ..................................... 5.03
Section 318(a) ..................................... 1.08
(c) ..................................... 1.08
</TABLE>
<PAGE> 13
THIS INDENTURE is entered into as of March 3, 1997, between
BANC ONE CORPORATION, a corporation organized and existing under the
laws of the State of Ohio (hereinafter called the "Company"), having
its principal executive office at 100 East Broad Street, Columbus, Ohio
43271, and THE CHASE MANHATTAN BANK, a New York banking corporation
(hereinafter called the "Trustee"), having its principal corporate
trust office at 450 W. 33rd Street, 15th Floor, New York, New York
10001.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and
<PAGE> 14
2
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(V) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or in
one or more indentures supplemental hereto, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at
the date of such computation.
<PAGE> 15
3
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President,
any Vice Chairman of the Board, any Vice President, the Treasurer, the
Secretary, the Comptroller, any Assistant Comptroller, any Assistant Treasurer
or any Assistant Secretary of the Company.
"Bearer Security" means any Security in the form established pursuant
to Section 2.02 which is payable to bearer, including, without limitation,
unless the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors
<PAGE> 16
4
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which
banking institutions in the City of Columbus, Ohio and any Place of Payment for
the Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonymne or its
successors.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if any time after the
execution and delivery of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President, a Vice Chairman of the Board, or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Comptroller, an Assistant Comptroller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
<PAGE> 17
5
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary
shall have been appointed pursuant to Section 3.05, 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 Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" 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.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in
<PAGE> 18
6
respect of the principal of (and premium, if any) and interest on Securities
denominated in ECU, any other composite currency or Foreign Currency, and signed
by the Chairman of the Board, a Vice Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer of the Company or the
Exchange Rate Agent appointed pursuant to Section 3.01 and delivered to the
Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined
with respect to any series of Securities pursuant to Section 3.01, the Company's
7.25% Subordinated Notes Due August 1, 2002, the Company's 8.74% Subordinated
Notes Due September 15, 2003, the Company's 7.00% Subordinated Notes Due July
15, 2005, the Company's 9.875% Subordinated Notes Due March 1, 2009, the
Company's 10.00% Subordinated Notes Due August 15, 2010, the Company's 7.75%
Subordinated Debentures Due July 15, 2025 and the Company's 7.625% Subordinated
Debentures Due October 15, 2026.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"General Obligations" means, unless otherwise determined with respect
to any series of Securities pursuant to Section 3.01, all obligations of the
Company to make payment on account of claims in respect of derivative products
such as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements, other than (i) obligations on account of Senior
Indebtedness, (ii) obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Securities and (iii) obligations
which by their terms are expressly stated not to be superior in right of payment
to the Securities or to rank on a parity with the Securities; provided, however,
that notwithstanding the foregoing, in the event that any rule, guideline or
interpretation promulgated or issued by the Board of Governors of the Federal
Reserve System (or other competent regulatory agency or authority), as from time
to time in effect, establishes or specifies criteria for the inclusion in
regulatory capital of subordinated debt of a bank holding company requiring that
such subordinated debt be subordinated to obligations to creditors in addition
to those set forth above, then the term "General Obligations" shall also include
such additional obligations to creditors,
<PAGE> 19
7
as from time to time in effect pursuant to such rules, guidelines or
interpretations. For purposes of this definition, "claim" shall have the meaning
assigned thereto in Section 101(4) of the Bankruptcy Code of 1978, as amended to
the date of this instrument.
"Global Exchange Date" has the meaning specified in Section
3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of
a series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security (or any temporary Global Security) or a
coupon, means the bearer thereof.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security (or any installment of principal) becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, a Vice Chairman of the Board, or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. Each such certificate shall contain the statements set
forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion
<PAGE> 20
8
shall contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding" when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding 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, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
<PAGE> 21
9
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee, at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument
"Principal Paying Agent" means the Paying Agent, if any, designated as
such by the Company pursuant to Section 3.01 of this Indenture.
<PAGE> 22
10
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in such Security at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; provided,
however, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities", with respect to any such Person, shall mean
Securities authenticated and delivered
<PAGE> 23
11
under this Indenture, exclusive, however, of Securities of any series as to
which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on (i) all of the Company's indebtedness for money borrowed, other than
the Securities and the Existing Subordinated Indebtedness, whether outstanding
on the date of execution of this Indenture or thereafter created, assumed or
incurred, except such indebtedness as is by its terms expressly stated to be not
superior in right of payment to the Securities or the Existing Subordinated
Indebtedness or to rank pari passu with the Securities or the Existing
Subordinated Indebtedness and (ii) any deferrals, renewals or extensions of any
such Senior Indebtedness. The term "indebtedness for money borrowed" as used in
the foregoing sentence shall include, without limitation, any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or
such installment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the
<PAGE> 24
12
election of directors irrespective of whether or not stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise
expressly provided) means the Trust Indenture Act of 1939, as in force at the
date as of which this instrument was executed, and, to the extent required by
law, as amended.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or
pursuant to this Indenture, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
<PAGE> 25
13
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except as otherwise
expressly provided in this Indenture) shall include:
(i) a statement that each individual 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 statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the
<PAGE> 26
14
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Sixteen or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
<PAGE> 27
15
The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
(iv) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such depositary, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems
<PAGE> 28
16
sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(vii) For purposes of determining the principal amount of Outstanding
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, by Holders of the required aggregate principal amount of the
Outstanding Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
<PAGE> 29
17
(ix) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that is the
Holder of a Global Security, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given or
taken by Holders, and a Depositary that is the Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of interests in any such
Global Security through such Depositary's standing instructions and customary
practices.
(xi) The Company may fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Security held
by a Depositary entitled under the procedures of such Depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document
<PAGE> 30
18
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Principal Corporate Trust Office, Attention: Corporate
Trustee Administration Department, or
(ii) the Company by any Holder or by the Trustee shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event,
(1) such notice shall be sufficiently given (unless otherwise herein or
in such Security expressly provided) if in writing and mailed, first-class,
postage prepaid, to each Holder of Registered Securities affected by such
event, at his address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and, if the Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited and
such stock exchange shall so require, in London and, if the Securities of
such series are then listed on the Luxembourg Stock Exchange and such stock
exchange shall so require, in Luxembourg and, if the Securities of such
series are then listed on any other stock exchange and such stock exchange
shall so require, in any other required city outside the United States, or,
if not practicable, elsewhere in Europe on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice.
<PAGE> 31
19
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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.
SECTION 1.07. 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 1.08. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 and
<PAGE> 32
20
318, inclusive, of the TIA, such imposed duties or incorporated provision shall
control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.11. Separability Clause. 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 1.12. Benefits of Indenture. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Holders and, to the extent
provided in Article Fourteen hereof, the holders of Senior Indebtedness and
creditors in respect of General Obligations, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as contemplated
by Section 3.01 with respect to any series of Securities, in any case where any
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date of any
Security or any date on which any Defaulted Interest is proposed to be paid
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provisions of the Securities or this Indenture) payment of the principal
of, premium, if any, or interest on any Securities need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Stated Maturity, Repayment or Redemption Date or on the date on which Defaulted
Interest is proposed to be paid and, if such payment is made, no interest shall
accrue on such payment for the period from and after any such Interest Payment
Date, Stated Maturity, Repayment Date or Redemption Date or date on which
Defaulted Interest is proposed to be paid, as the case may be.
<PAGE> 33
21
SECTION 1.14. Governing Law. This Indenture and the Securities shall be
construed in accordance with and governed by the laws of the State of New York.
ARTICLE TWO
Security Forms
SECTION 2.01. Form Generally. All Securities and any related coupons
shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in
one of the forms approved from time to time by or pursuant to a Board Resolution
or an indenture supplemental hereto. Upon or prior to the delivery of a Security
or coupons in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
<PAGE> 34
22
(i) such indenture supplemental hereto or the Board Resolution by or
pursuant to which such form of Security or coupons has been approved,
certified by the Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof shall be established as provided in
Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
by_____________________________
Authorized Officer
SECTION 2.04. Global Securities. If Securities of a series are issuable
in whole or in part in global form, as specified as contemplated by Section
3.01, then, notwithstanding clause (xii) of Section 3.01 and the provisions of
Section 3.02, such Global Security shall represent such of the outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect
exchanges or increased to reflect the issuance of additional
<PAGE> 35
23
uncertificated securities of such series. Any endorsement of a Global Security
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form.
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(i) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate initial
public offering price of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other
<PAGE> 36
24
Securities of that series pursuant to this Article Three or Sections
4.07, 9.06 or 15.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of
the aggregate principal amount thereof) at which the Securities will be
issued;
(v) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable, the
Regular Record Date for the interest payable on any Interest Payment Date
and the basis upon which interest shall be calculated if other than that of
a 360-day year consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for
definitive securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02,
the Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable;
(x) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
<PAGE> 37
25
(xi) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions upon
which Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable; and, if other than $5,000 or any integral multiple
thereof, the denominations in which Bearer Securities of the series shall be
issuable;
(xiii) the currency or currencies of denominations of the Securities of
any series, which may be in Dollars, any Foreign Currency or any composite
currency, including but not limited to the ECU, and, if any such currency of
denomination is a composite currency other than the ECU, the agency or
organization, if any, responsible for overseeing such composite currency;
(xiv) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and the Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium, if any)
or any interest on Securities of the series may be determined with reference
to an index, the method or methods by which such amounts shall be
determined;
(xvi) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of the
series are to be issuable with or without coupons or both and, in the case
of Bearer Securities, the date as of which such Bearer Securities shall be
dated if other than the date
<PAGE> 38
26
of original issuance of the first Security of such series of like tenor and
term to be issued;
(xvii) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue
Discount Securities and the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02;
(xix) information with respect to book-entry procedures, if any;
(xx) any addition to or change in the Events of Default or covenants
of the Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided in such Officers' Certificate or in any
indenture supplement hereto.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to
the obligations of the Company to holders of Senior Indebtedness and creditors
in respect of General Obligations of the Company as provided in Article
Fourteen.
<PAGE> 39
27
Notwithstanding Section 3.01(ii) and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the Securities
of any series, the Registered Securities of each series shall be issuable only
as Securities without coupons in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of each series, if any, shall be
issuable with coupons and in denominations of $5,000 and any integral multiple
thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, a Vice Chairman of the Board, or one of its Vice
Presidents, or its Treasurer and by its Secretary or one of its Assistant
Secretaries. The signatures of any or all of these officers on the Securities
may be manual or facsimile. Coupons shall bear the facsimile signature of the
Company's Chairman of the Board, its President, a Vice Chairman of the Board or
one of its Vice Presidents, or its Treasurer.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer
<PAGE> 40
28
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have delivered to the Trustee, or such other Person
as shall be specified in a temporary Global Security delivered pursuant to
Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act, and any other applicable statute or regulation.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that,
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner of
determining such terms have been
<PAGE> 41
29
established in conformity with the provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series; provided that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such request, the statements made
in the Officers' Certificate or other certificates delivered pursuant to
Sections 1.02 and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are
<PAGE> 42
30
the subject thereof will be authenticated and delivered by the Trustee or its
agent on original issue from time to time in the aggregate principal amount, if
any, established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic (promptly confirmed in writing), electronic or written order of
Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
Each Registered Security shall be dated the date of its
authentication; and unless otherwise specified as contemplated by Section 3.01,
each Bearer Security and any temporary Global Security referred to in Section
3.04 shall be dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 3.06, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
Notwithstanding the foregoing, if any Security or portion thereof shall have
been duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancelation as provided in Section 3.09 together with a written statement (which
need not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel) stating that such Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
<PAGE> 43
31
SECTION 3.04. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Company may execute, and
upon Company Order and the receipt of the certifications and opinions required
under Sections 3.01 and 3.03, the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denominations, 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 by their execution of such Securities. In the case of any series which
may be issuable as Bearer Securities, such temporary Securities may be in global
form, representing such of the Outstanding Securities of such series as shall be
specified therein.
(b) Unless otherwise provided pursuant to
Section 3.01:
(i) Except in the case of temporary Securities in global form,
each of 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 such series to
be prepared without unreasonable delay. After the preparation of
definitive Securities, 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 in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancelation of any one or more temporary
Securities of any series (accompanied, if applicable, by all unmatured
coupons and all matured coupons in default appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of
such series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a definitive
Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in the
provisos to the third paragraph of Section 3.03. Until
<PAGE> 44
32
so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(ii) If temporary Securities of any series are issued in global
form, any such temporary Global Security shall, unless otherwise
provided in such temporary Global Security, be delivered to the London
office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the operator of Euroclear and CEDEL S.A., for credit
to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct). Upon receipt of written
instructions (which need not comply with Section 1.02) signed on behalf
of the Company by any Person authorized to give such instructions, the
Trustee or any Authenticating Agent shall endorse such temporary Global
Security to reflect the initial principal amount, or an increase in the
principal amount, of Outstanding Securities represented thereby. Until
such initial endorsement, such temporary Global Security shall not
evidence any obligation of the Company. Such temporary Global Security
shall at any time represent the aggregate principal amount of
Outstanding Securities theretofore endorsed thereon as provided above,
subject to reduction to reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global
Security, and subject to the second proviso in the following paragraph,
the interest of a beneficial owner of Securities of a series in a
temporary Global Security shall be exchanged for definitive Securities
(including a definitive Global Bearer Security) of such series and of
like tenor following the Global Exchange Date (as defined below) when
the account holder instructs Euroclear or CEDEL S.A., as the case may
be, to request such exchange on his behalf and delivers to Euroclear or
CEDEL S.A., as the case may be, a certificate in the form required by
Section 3.11(i), dated no earlier than 15 days prior to the Global
Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL S.A., the Trustee, any Authenticating
Agent appointed for such series of Securities and each Paying Agent.
Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of
<PAGE> 45
33
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 S.A. Definitive Securities
in bearer form to be delivered in exchange for any portion of a
temporary Global Security shall be delivered only outside the United
States.
(iv) 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 as the "Global Exchange Date" (the "Global
Exchange Date"), the Company shall deliver to the Trustee, or, if the
Trustee appoints an Authenticating Agent pursuant to Section 8.14, to
any such Authenticating Agent, definitive Securities in aggregate
principal amount equal to the principal amount of such temporary Global
Security, executed by the Company. Unless otherwise specified as
contemplated by Section 3.01, such definitive Securities shall be in
the form of Bearer Securities or Registered Securities, or any
combination thereof, as may be specified by the Company, the Trustee or
any such Authenticating Agent, as may be appropriate. On or after the
Global Exchange Date, such temporary Global Security shall be
surrendered by the Common Depositary to the Trustee or any such
Authenticating Agent, 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 or any such Authenticating
Agent 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 authorized denominations
and of like tenor as the portion of such temporary Global Security to
be exchanged, which, except as otherwise specified as contemplated by
Section 3.01, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof; provided, however, that unless
otherwise specified in such temporary Global Security, upon such
presentation by the Common Depositary, such temporary Global Security
is accompanied by a certificate dated the Global Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such
temporary Global
<PAGE> 46
34
Security held for its account then to be exchanged and a certificate
dated the Global Exchange Date or a subsequent date and signed by CEDEL
S.A., as to the portion of such temporary Global Security held for its
account then to be exchanged, each in the form required by Section
3.11(ii); and provided further that a definitive Bearer Security
(including a definitive global Bearer Security) shall be delivered in
exchange for a portion of a temporary Global Security only in
compliance with the conditions set forth in the provisos to the third
paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary
Global Security, such temporary Global Security shall be endorsed by
the Trustee or any such Authenticating Agent, as the case may be, to
reflect the reduction of the principal amount evidenced thereby,
whereupon its remaining principal amount shall be reduced for all
purposes by the amount so exchanged. Until so exchanged in full, such
temporary Global Security shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.01, interest payable on such
temporary Global Security on an Interest Payment Date for Securities of
such series occurring prior to the applicable Global Exchange Date
shall be payable, without interest, to Euroclear and CEDEL S.A. on or
after such Interest Payment Date upon delivery by Euroclear and CEDEL
S.A. to the Trustee or the Paying Agent, as the case may be, of a
certificate or certificates in the form required by Section 3.11(iii),
for credit on or after such Interest Payment Date to the respective
accounts of the Persons who are the beneficial owners of such temporary
Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL S.A., as the case may be, a certificate
in the form required by Section 3.11(iv). Any interest so received by
Euroclear and CEDEL S.A. and not paid as herein provided prior to the
Global Exchange Date shall be returned to the Trustee or Paying Agent,
as the case may be, which, upon expiration of two years after such
Interest Payment Date, shall repay such interest to the Company on
Company Request in accordance with Section 5.03.
<PAGE> 47
35
SECTION 3.05. Registration, Registration of Transfer and
Exchange. With respect to Registered Securities, the Company shall keep or cause
to be kept a register (sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and the registration
of transfers of Registered Securities and the Company shall appoint a "Security
Registrar", and may appoint any "Co-Security Registrar", as may be appropriate,
to keep the Security Register. Such Security Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
Security Register shall be available for inspection by the Trustee at the office
of the Security Registrar. In the event that any Registered Securities issued
hereunder have the City of New York as a Place of Payment, the Company shall
appoint either a Security Registrar or Co-Security Registrar located in the City
of New York.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 5.02 for such purpose in a Place of Payment for such series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of such series of any authorized denominations and of a like
aggregate principal amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of such series, of any
authorized denominations and of like aggregate principal amount, tenor and
Stated Maturity, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer
Securities.
At the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the
<PAGE> 48
36
Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such 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 any such payment from the
Company; provided, however, that interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency of a Paying Agent, maintained pursuant to Section 5.02 for such purpose,
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for individual Securities
represented thereby, a 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.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall
<PAGE> 49
37
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.03, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.01(vii) shall no longer be effective with respect to the Securities of
such series and the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company Order for the authentication and
<PAGE> 50
38
delivery of definitive Securities of such series, shall authenticate and
deliver, without service charge:
(a) to the Depositary or to each Person specified by such
Depositary a new Security or Securities of the same series, of like
tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and
terms and in an authorized denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security
and the aggregate principal amount of Securities delivered to Holders
thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee, pursuant to a Company
Order, will authenticate and deliver, Securities (a) in definitive registered
form in authorized denominations, if the Securities of such series are issuable
as Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in
definitive form, such Global Securities shall be canceled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section 3.05 shall be registered in such names and in such authorized
denominations, and delivered to such addresses, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the Persons in whose names such
Securities are so registered or to the Depositary. The Trustee shall deliver
Bearer Securities issued in exchange for a Global Security pursuant to this
Section 3.05 to the Depositary or to the Persons at such addresses, and in such
authorized denominations, as the
<PAGE> 51
39
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered
for transfer or exchanged, no service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to Holders.
Neither the Company, the Security Registrar nor any
Co-Security Registrar shall be required (i) to issue, register the transfer of
or exchange any Securities of any series during a period beginning at the
opening of business 15 days before the day of selection of Securities of such
series to be redeemed and ending at the close of business on (A) if Securities
of the series are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption of Registered Securities of such series so
selected for redemption or (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as
<PAGE> 52
40
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer or exchange of any
Securities or portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities into Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange; none of the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges unless and until the Trustee receives a subsequent Company Order
to the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities. If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to the Trustee or the Security Registrar, or if the Company, the
Trustee and the Security Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon and (ii) there is delivered
to the Company, the Trustee and the Security Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company, the Trustee or the Security Registrar that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu
of any such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a mutilated, destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not mutilated, destroyed, lost or stolen), a new
Security of the same series and Stated Maturity and of like tenor and principal
amount, bearing a number not contemporaneously outstanding and, if applicable,
with coupons corresponding to the coupons appertaining thereto; provided,
however, that any new Bearer Security will be delivered only in compliance with
the conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead
<PAGE> 53
41
of issuing a new Security, pay such Security; provided, however, that payment of
principal of (and premium, if any) and any interest on Bearer Securities shall
be payable only at an office or agency located outside the United States, and,
in the case of interest, unless otherwise specified as contemplated by Section
3.01, only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security with a destroyed, lost or stolen coupon,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall unless otherwise provided in such
Security be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise specified as contemplated by
Section 3.01, in case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency referred to in Section 3.05) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment
<PAGE> 54
42
Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of his having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted
Interest to the Persons in whose names any such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment
<PAGE> 55
43
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first class, postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause (ii). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date of payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date for payment and
Defaulted Interest will not be payable on such proposed date for payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities with respect to which there exists such default
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Subject to the limitations set forth in Section 5.02, the
Holder of any coupon appertaining to a Bearer Security shall be entitled to
receive the interest payable on such coupon upon presentation and surrender of
such coupon on or after the Interest Payment Date of such
<PAGE> 56
44
coupon at an office or agency maintained for such purpose pursuant to Section
5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer
Security, any coupons appertaining thereto and any temporary Global Security
shall pass by delivery.
Prior to due presentment for registration of transfer of any
Registered Security, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.07) interest on such Security, and
for all purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent or the Security Registrar will have the responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interest of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interest, and they shall be fully protected in acting or refraining from acting
on any such information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with
respect to a series of Securities, all Securities and coupons surrendered for
payment, registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities
<PAGE> 57
45
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture or such Securities. All
cancelled Securities or coupons held by the Trustee shall be disposed of by the
Trustee in accordance with its customary procedures and the Trustee shall
deliver a certificate of such disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the
Securities of each series shall be computed as shall be specified as
contemplated by Section 3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided
pursuant to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by a Person entitled
to receive a Bearer Security, such certification shall be provided
substantially in the form of Exhibit A hereto, with only such changes
as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and
CEDEL S.A. in connection with the exchange of a portion of a temporary
Global Security, such certification shall be provided substantially in
the form of Exhibit B hereto, with only such changes as shall be
approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and
CEDEL S.A. in connection with payment of interest with respect to a
temporary Global Security prior to the related Global Exchange Date,
such certification shall be provided substantially in the form of
Exhibit C hereto, with only such changes as shall be approved by the
Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial
owner of a portion of a temporary Global Security in connection with
payment of interest with respect to a temporary Global Security
<PAGE> 58
46
prior to the related Global Exchange Date, such certification shall be
provided substantially in the form of Exhibit D hereto, with only such
changes as shall be approved by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to
Section 3.01, for the Securities of any series that, to the fullest extent
possible under applicable law and except as may otherwise be specified as
contemplated in Section 3.01, (a) the obligation, if any, of the Company to pay
the principal of (and premium, if any) and interest on the Securities of any
series and any appurtenant coupons in a Foreign Currency, composite currency or
Dollars (the "Designated Currency") as may be specified pursuant to Section 3.01
is of the essence and agrees that judgments in respect of such Securities shall
be given in the Designated Currency; (b) the obligation of the Company to make
payments in the Designated Currency of the principal of (and premium, if any)
and interest on such Securities and any appurtenant coupons shall,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
currency (after any premium and cost of exchange) in the country of issue of the
Designated Currency in the case of Foreign Currency or Dollars or in the
international banking community in the case of a composite currency on the
Business Day immediately following the day on which such Holder receives such
payment; (c) if the amount in the Designated Currency that may be so purchased
for any reason falls short of the amount originally due, the Company shall pay
such additional amounts as may be necessary to compensate for such shortfall;
and (d) any obligation of the Company not discharged by such payment shall be
due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
SECTION 3.13 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers or Euroclear or CEDEL reference numbers (if
then generally in use), and if, so, the Trustee shall use such numbers in
notices of redemption or other related material as a convenience to Holders;
provided that any such notice or other related material may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other related
<PAGE> 59
47
material and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and, except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The
election of the Company to redeem any Securities redeemable at the option of the
Company shall be evidenced by an Officers' Certificate. In case of any
redemption at the election of the Company of the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee and the Security Registrar of such Redemption Date and of the
principal amount of Securities of such series to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To
Be Redeemed. If less than all the Securities of any series with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Security Registrar
from the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for
<PAGE> 60
48
Securities of such series. Unless otherwise provided by the terms of the
Securities of any series so selected for partial redemption, the portions of the
principal of Securities of such series so selected for partial redemption shall
be, in the case of Registered Securities, equal to $1,000 or an integral
multiple thereof or, in the case of Bearer Securities, equal to $5,000 or an
integral multiple thereof, and the principal amount of any such Security which
remains outstanding shall not be less than the minimum authorized denomination
for Securities of such series.
The Security Registrar shall promptly notify the Company, the
Trustee and the Co-Security Registrar, if any, in writing of the Securities
selected for redemption and, in the case of any Security 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 of such Security which has been or is to
be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 1.06, not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series
having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of
the particular Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed, and that
interest, if any, thereon shall cease to accrue on and after said date;
<PAGE> 61
49
(v) the place or places where such Securities, together in
the case of Bearer Securities with all remaining coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(vi) that the redemption is for a sinking fund, if
such is the case; and
(vii) the CUSIP number or the Euroclear or the CEDEL reference
number (or any other number used by a Depositary to identify such
Securities), if any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section
1.06(2) need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, on Company Request, by
the Trustee in the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the
opening of business on any Redemption Date, the Company shall deposit or cause
to be deposited with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 5.03) an amount of money sufficient to pay the Redemption Price of all
the Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price; provided,
<PAGE> 62
50
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by such Security, or as otherwise
provided in such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at the office or agency of
the Company in a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such
<PAGE> 63
51
Security without service charge, a new Security or Securities of the same series
and Stated Maturity, containing identical terms and conditions, of any
authorized denominations as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all Securities then
Outstanding are to be redeemed) or commence the giving of any notice of
redemption of Securities during the continuance of any Event of Default known to
the Trustee, except that where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall, subject to the
provisions of Section 14.04, redeem such Securities, provided funds are
deposited with it for such purpose. Subject to the rights of the holders of
Senior Indebtedness and creditors in respect of General Obligations, except as
aforesaid, any moneys theretofore or thereafter received by the Trustee shall,
during the continuance of such Event of Default, be held in trust for the
benefit of the Holders and applied in the manner set forth in Section 7.06;
provided, however, that in case such Event of Default shall have been waived as
provided herein or otherwise cured, such moneys shall thereafter be held and
applied in accordance with the provisions of this Article.
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of, premium, if any, and interest
on the Securities of such series in accordance with the terms of the Securities
of such series, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 3.01 with respect to any series
of Securities, any interest due on Bearer Securities on or before Maturity shall
be payable only outside the United States upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
<PAGE> 64
52
SECTION 5.02. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If Securities of a series
may be issuable as Bearer Securities, the Company will maintain (A) in the
Borough of Manhattan, the City of New York an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served, (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 5.04); provided, however, that if the Securities of
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for such series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of
<PAGE> 65
53
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations, and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Principal Corporate
Trust Office of the Trustee, except that Bearer Securities of that series and
the related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Bearer Securities of that series
pursuant to Section 5.04) at the place specified for the purpose as contemplated
by Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of
any particular series pursuant to the provisions of this Indenture, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, payment of principal of and any
premium and interest denominated in Dollars (including additional amounts
payable in respect thereof) on any Bearer Security may be made at an office or
agency of, and designated by, the Company located in the United States if (but
only if) payment of the full amount of such principal, premium, interest or
additional amounts in Dollars at all offices outside the United States
maintained for the purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or similar restrictions
and the Trustee receives an Opinion of Counsel that such payment within the
United States is legal. Unless otherwise provided as contemplated by Section
3.01 with respect to any series of Securities, at the option of the Holder of
any Bearer Security or related coupon, payment may be made by check in the
currency designated for such payment pursuant to the terms of such Bearer
Security presented or mailed to an address outside the United States or by
transfer to an account in such currency maintained by the payee with a bank
located outside the United States.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of such purposes specified above in this
Section and may constitute and appoint one or more Paying Agents for the payment
of such Securities, in one or more other cities, and may from time to time
rescind such designations and
<PAGE> 66
54
appointments; provided, however, that no such designation, appointment or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series 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 office or agency. Unless and until the Company rescinds one or more such
appointments, the Company hereby appoints The Chase Manhattan Bank, as its
Paying Agent in the City of New York with respect to all series of Securities
having a Place of Payment in the City of New York.
SECTION 5.03. Money for Security Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, at or prior to the opening of business on
each due date of the principal of, premium, if any, or interest on any
Securities of such series and any appurtenant coupons, deposit with a Paying
Agent a sum sufficient to pay the principal, premium or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the
Trustee for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee subject to
the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series and any
appurtenant coupons in trust for the benefit of the Persons entitled
<PAGE> 67
55
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series) in the making
of any payment of principal, premium or interest on the Securities of
such series or any appurtenant coupons; and
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust, and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
<PAGE> 68
56
SECTION 5.04. Additional Amounts. If the Securities of a
series provide for the payment of additional amounts, the Company will pay to
the Holder of any Security of any series or any coupon appertaining thereto
additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made), and at least 10 days prior to each
date of payment of principal (and premium, if any) or interest if there has been
any change with respect to the matters set forth in the below- mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
Principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of that series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their
<PAGE> 69
57
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 5.05. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate (which need not comply with Section 1.02)
(provided, however, that one of the signatories of which shall be the Company's
principal executive officer, principal financial officer or principal accounting
officer) stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such
year and of performance under this Indenture and under the terms of the
Securities has been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations and complied with all
conditions and covenants under this Indenture and under the terms of
the Securities throughout such year, or, if there has been a default in
the fulfillment of any such obligation, condition or covenant
specifying each such default known to him and the nature and status
thereof, and (b) no event has occurred and is occurring which is, or
after notice or lapse of time or both would become, a Default, or if
such an event has occurred and is continuing, specifying such event
known to him and the nature and status thereof.
For purposes of this Section, compliance or default shall be
determined without regard to any period of grace or requirement of notice
provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and
Franchises. So long as any of the Securities shall be Outstanding, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises to carry on its
business; provided, however, that nothing in this Section 5.06 shall (i) require
the Company to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders, (ii) prevent any
consolidation or
<PAGE> 70
58
merger of the Company, or any conveyance or transfer of its property and assets
substantially as an entirety to any person, permitted by Article Ten, (iii)
prevent the liquidation or dissolution of the Company after any conveyance or
transfer of its property and assets substantially as an entirety to any person
permitted by Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
SECTION 6.01. Company To Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, as the case may be, and (ii) at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of
any such request, a list of similar form and content as of a date not more than
15 days prior to the time such list is requested to be furnished; provided,
however, that if and so long as the Trustee is the Security Registrar for
Securities of a series, no such list need be furnished with respect to such
series of Securities.
SECTION 6.02. Preservation of Information; Communications to
Holders. (i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months
<PAGE> 71
59
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders of Securities of such series
or with the Holders of all Securities with respect to their rights under this
Indenture or under such Securities and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of such application,
at its election, either:
(a) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 6.02(i), and as to
the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or all Holders of
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
6.02(i), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such series or all Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for
<PAGE> 72
60
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Securities with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise, the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(iii) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with Section 6.02(ii), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section
6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May
l5 of each year commencing with the year 1997, the Trustee shall mail to each
Holder reports concerning the Trustee and its action under the Indenture as may
be required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by
mail (1) to all Holders of Registered Securities, as their names and addresses
appear in the Security Register and (2) to such Holders of Bearer Securities as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, and also with the Commission. The Company
will notify the Trustee when any Securities are listed on any securities
exchange.
<PAGE> 73
61
SECTION 6.04. Reports by Company. The Company
will:
(i) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner
and to the extent provided in Section 6.03(ii), within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (i) and (ii) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
<PAGE> 74
62
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default. "Event of Default", with
respect to any series of Securities, wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless it is either inapplicable to
a particular series or it is specifically deleted or modified in the
supplemental indenture or Board Resolution under which such series of Securities
is issued or in the form of Security for such series:
(i) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company
in an involuntary case under the Federal Bankruptcy Code, adjudging the
Company a bankrupt, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under the Federal Bankruptcy Code or any other
applicable Federal or State bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the Company, or of
substantially all of its properties, or ordering the winding up or
liquidation of its affairs under any such law, and the continuance of
any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(ii) the institution by the Company of proceedings to be
adjudicated a bankrupt, or the consent of the Company to the
institution of bankruptcy proceedings against it, or the filing by the
Company of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable
Federal or State bankruptcy, insolvency or similar law, or the consent
by the Company to the filing of any such petition or to the appointment
of a receiver, liquidator, custodian, assignee, trustee, sequestrator
(or other similar official) of the Company, or of substantially all of
its properties under any such law; or
<PAGE> 75
63
(iii) any other Event of Default provided with respect to Securities of
that series.
SECTION 7.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to any series of Securities for
which there are Securities Outstanding occurs and is continuing, then, and in
every such case, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series may declare the principal of
all the Securities of such series (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) to be immediately due and payable, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of such series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences, and any Event of Default giving rise to such declaration shall not
be deemed to have occurred, if:
(i) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(a) all overdue installments of interest on all Securities
of such series;
(b) the principal of and premium, if any, on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor by the terms of the
Securities of such series;
(c) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the
rate or rates prescribed therefor by the terms of the
Securities of such series; and
<PAGE> 76
64
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, the Security
Registrar, any Paying Agent, and their agents and counsel and
all other amounts due the Trustee under Section 8.07.
(ii) all other Defaults with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 7.13.
No such recession shall affect any subsequent default or
impair any right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(i) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or
premium, if any, on any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue installments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid,
<PAGE> 77
65
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If a Default with respect to any series of Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of any Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07) and of the
Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
<PAGE> 78
66
and any 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 for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon 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 of a
Security or coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or under the
Securities of any series, or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.
SECTION 7.06. Application of Money Collected. Any money
collected by the Trustee with respect to a series of Securities pursuant to this
Article shall be applied in the following order, at the date or dates fixed by
the Trustee, and, in case of the distribution of such money on account of
principal, premium, if any, or interest, upon presentation of the Securities of
such series or coupons appertaining thereto, if any, or both, as the case may
be,
<PAGE> 79
67
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 8.07;
SECOND: Subject to Article Fourteen, to the payment of the
amounts then due and unpaid upon the Securities of such series and
coupons for principal, premium, if any, and interest, in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on Securities of such series and coupons, if
any, for principal, premium, if any, and interest, respectively. The
Holders of each series of Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Exchange Rate Agent by converting the
principal amount Outstanding of such series of Securities and matured
but unpaid interest on such series of Securities in the currency in
which such series of Securities is denominated into Dollars at the
Exchange Rate as of the Business Day immediately preceding the date of
payment; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security
of any series or any related coupons shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Trustee of a continuing Default with respect to Securities of such
series;
(ii) the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have made
written request to the Trustee to institute proceedings in respect of
such Default in its own name as Trustee hereunder;
<PAGE> 80
68
(iii) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(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) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any
series of Securities under this Indenture:
(a) an Event of Default with respect to such series specified
in Section 7.01; or
(b) default in the payment of the principal of or premium, if
any, on any Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security
of such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(d) failure on the part of the Company duly to observe or
perform any of the other covenants or agreements on its part in the
Securities of such series or in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other
<PAGE> 81
69
than that series) and continuance of such failure for a period of 90
days after the date on which written notice of such failure, requiring
the Company to remedy the same and stating that such notice is a
"Notice of Default" hereunder, shall have been given by registered mail
to the Company by the Trustee, or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the Securities
of such series at the time Outstanding; or
(e) any other Default provided with respect to Securities of
that Series.
SECTION 7.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal of, premium, if
any, and (subject to Section 3.07) interest on such Security or payment of such
coupon on the respective Stated Maturities expressed in such Security or coupon
(or, in the case of redemption or repayment on the Redemption Date or Repayment
Date) and to institute suit for the enforcement of such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
lost, destroyed or stolen Securities or coupons in the last paragraph of Section
3.06, 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
<PAGE> 82
70
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 7.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Default shall impair any such right or
remedy or constitute a waiver of any such Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series; provided that
(i) such direction shall not be in conflict with any rule of
law or with this Indenture,
(ii) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction,
(iii) subject to the provisions of Section 8.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability, and
(iv) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder and its consequences, except a default not theretofore cured
<PAGE> 83
71
(i) in the payment of the principal of, premium, if any, or
interest on any Security of such series, or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of the Securities of such series under this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder of
Securities or coupons for the enforcement of the payment of the principal of,
premium, if any, or interest on any Security or payment of any coupon on or
after the respective Stated Maturities expressed in such Security or coupon (or,
in the case of redemption or repayment, on or after the Redemption Date or
Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the
<PAGE> 84
72
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities. (i) Except
during the continuance of a Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to Securities of such series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee with
respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificate
or opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform as to form to
the requirements of the Indenture.
(ii) In case a Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(iii) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
<PAGE> 85
73
(a) this Subsection shall not be construed to limit the effect
of Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to Securities of
such series.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(iv) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 8.02. Notice of Default. Within 90 days after the
occurrence of any Default hereunder with respect to Securities of any series,
the Trustee shall transmit by mail to all Holders of Securities of such series
entitled to receive reports pursuant to Section 6.03(ii) notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of, premium, if any, or interest on any Security of such
series, or any related coupons or in the payment of any sinking fund installment
with respect to Securities of such series the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of
<PAGE> 86
74
the Holders of Securities of such series; and provided further that in the case
of any default of the character specified in Section 7.07(d) with respect to
Securities of such series, no such notice to Holders of Securities of such
series shall be given until at least 90 days after the occurrence thereof. For
the purpose of this Section, the term "default", with respect to Securities of
any series, means any event which is, or after notice or lapse of time, or both,
would become, a Default or an Event of Default with respect to Securities of
such series.
SECTION 8.03. Certain Rights of Trustee. Except
as otherwise provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(iii) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(iv) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and
<PAGE> 87
75
liabilities which might be incurred by it in compliance with such
request or direction;
(vi) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, security or other paper or document,
but the Trustee, in its discretion, may make further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney and, if so requested to do
so by any of the Holders, at the sole cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(viii) in the event that the Trustee is also acting as Paying
Agent, Authenticating Agent or Security Registrar hereunder, the rights
and protections afforded to the Trustee pursuant to this Article Eight
shall also be afforded to such Paying Agent, Authenticating Agent or
Security Registrar;
(ix) the Trustee shall not be charged with knowledge of any
Default unless either (1) a Responsible Officer of the Trustee shall
have actual knowledge of such Default or (2) written notice of such
Default shall have been given to the Trustee by the Company or any
Holder; and
(x) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
SECTION 8.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the
<PAGE> 88
76
Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 8.08 and 8.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 8.07. Compensation and Reimbursement. The Company
agrees
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or
<PAGE> 89
77
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of, premium, if any, or
interest on particular Securities.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in 7.01, the expenses (including
the reasonable fees and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07
and any lien arising hereunder shall survive the resignation or removal of any
Trustee, the discharge of the Company's obligations pursuant to Article Eleven
of this Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To the
extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to
have a conflicting interest with respect to the indentures relating to Existing
Subordinated Indebtedness or to the Securities of any series by virtue of being
Trustee with respect to the Securities of any particular series of Securities
other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee with respect to each series of Securities
hereunder which shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having
a combined capital and
<PAGE> 90
78
surplus of at least $5,000,000, subject to supervision or examination by Federal
or State authority; provided, however, that if Section 310(a) of the Trust
Indenture Act or the rules and regulations of the Commission under the Trust
Indenture Act at any time permit a corporation organized and doing business
under the laws of any other jurisdiction to serve as trustee of an indenture
qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of
Successor. (i) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the resigning Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
<PAGE> 91
79
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with
respect to any series of Securities after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 8.09
with respect to any series of Securities and shall fail to resign after
written request therefor by the Company or by any Holder of Securities
of such series, or
(c) the Trustee shall become incapable of acting with respect
to any series of Securities or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a vacancy
shall occur in the office of Trustee with respect to any series of Securities
for any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
8.11. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to such series
of Securities shall be appointed by the Act of the Holders of a majority in
<PAGE> 92
80
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee with respect to such series, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to such series and to that extent
supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so
appointed by the Company or the Holders of Securities of such series and
accepted appointment in the manner hereinafter provided, any Holder who has been
A bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to such series.
(vi) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities of such series as their names
and addresses appear in the Security Register and, if Securities of such series
are issuable as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment for the Securities of such series
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In
the case of the appointment hereunder of a successor Trustee with respect to any
series of Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective with respect to all or any series as to
which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument
<PAGE> 93
81
transferring to such successor Trustee all the rights, powers and trusts of such
retiring Trustee with respect to all or any such series; and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to all or any such series, subject
nevertheless to its lien, if any, provided in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which
<PAGE> 94
82
the appointment of such successor Trustee relates, subject nevertheless to its
lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of
Securities shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible with respect to such
series under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
any claim as a creditor against the Company (or any such other obligor). A
Trustee that has resigned or been removed shall be subject to and comply with
said Section 311 to the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The
Trustee may appoint an Authenticating Agent or
<PAGE> 95
83
Agents, which may include any Affiliate of the Company, with respect to one or
more series of Securities. Such Authenticating Agent or Agents at the option of
the Trustee shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issuance, exchange, registration
of transfer or partial redemption thereof or pursuant to Section 3.06, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Whenever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication or the delivery of Securities to the Trustee for
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent, a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent and
delivery of Securities to the Authenticating Agent on behalf of the Trustee.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $5,000,000 and subject to supervision or examination by
Federal or State authority. Notwithstanding the foregoing, an Authenticating
Agent located outside the United States may be appointed by the Trustee if
previously approved in writing by the Company and if such Authenticating Agent
meets the minimum capitalization requirements of this Section 8.14. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating
<PAGE> 96
84
Agent shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as
Trustee,
by________________________________
As Authenticating Agent
by
<PAGE> 97
85
______________________________
Authorized Officer
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holder of any Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or
Person to the Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of
appointment by another corporation as a successor Trustee hereunder
with respect to one or more series of Securities and to add to or
change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit
of the Holders of Securities of all or any series of Securities or
coupons (and if such covenants are to be for the benefit of less than
all series of Securities or coupons, stating that such covenants are
expressly being included solely for the benefit of such series), or to
surrender any right or power herein conferred upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under the Indenture; provided that such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect, or
<PAGE> 98
86
(v) to add any additional Defaults or Events of Default
with respect to all or any series of the Securities (and, if such
Default or Event of Default is applicable to less than all series of
Securities, specifying the series to which such Default or Event of
Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of
this Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities,
to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided
any such action shall not adversely affect the interests of the Holders
of Securities of any series or any related coupons in any material
respect; or
(vii) to add to, change or eliminate any of the provisions of
this Indenture, provided that any such addition, change or elimination
(a) shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is adversely affected by such change in or elimination
of such provision or (b) shall not apply to any Securities Outstanding;
or
(viii) to establish the form or terms of Securities of any
series as permitted by Sections 2.02 and 3.01, or
(ix) to add to or change any provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by
the terms thereof; or
(xi) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided such action shall not
adversely affect
<PAGE> 99
87
the interest of Holders of Securities of any series or any appurtenant
coupons in any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture or indentures (acting as one class), by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby;
(i) change the Maturity of the principal of, or the Stated
Maturity of any installment of interest (or premium, if any) on, any
Security, or reduce the principal amount thereof or any premium thereon
or the rate of interest thereon, or change the obligation of the
Company to pay additional amounts pursuant to Section 5.04 (except as
contemplated by Section 10.01(i) and permitted by Section 9.01), or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, or
change the method of calculating interest thereon or the coin or
currency in which any Security (or premium, if any, thereon) or the
interest thereon is payable, or reduce the minimum rate of interest
thereon, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment, on or after the Redemption Date or
Repayment Date);
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture or the consent of whose
Holders is required for any waiver of certain defaults hereunder and
their consequences provided for in this Indenture or reduce the
requirements of Section 16.04 for a quorum;
<PAGE> 100
88
(iii) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 5.02; or
(iv) modify any of the provisions of this Section or Section
7.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived.
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 the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, liabilities, duties or immunities under this
Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this
<PAGE> 101
89
Article shall conform to the requirements of the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 9.07. Subordination Unimpaired. No supplemental
indenture executed pursuant to this Article shall directly or indirectly modify
the provisions of Article Fourteen in any manner which might alter the
subordination of the Securities.
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless
(i) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, premium, if
any, and interest (including all additional amounts, if any, payable
pursuant to Section 5.04) on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(ii) immediately after giving effect to such transaction, no
Default, and no event which, after
<PAGE> 102
90
notice or lapse of time, or both, would become a Default, shall have
happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 10.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
10.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer 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. In the event of any such conveyance or
transfer, the Company as the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and may be dissolved, wound up
and liquidated at any time thereafter.
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(i) either
(a) all Securities theretofore authenticated and
delivered (other than (1) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities
and maturing after such
<PAGE> 103
91
exchange, whose surrender is not required or has not been
waived as provided in Section 3.05, (2) coupons appertaining
to Bearer Securities called for redemption and maturing after
the relevant Redemption Date, whose surrender has been waived
as provided in Section 4.06, (3) coupons appertaining to
Bearer Securities surrendered for repayment pursuant to
Section 15.03 and maturing after the Repayment Date, whose
surrender has been waived as provided in Section 15.03, (4)
Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.06, and (5) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 5.03) have
been delivered to the Trustee for cancelation; or
(b) all such Securities not theretofore delivered to
the Trustee for cancelation
(1) have become due and payable, or
(2) will become due and payable at their
Maturity within one year, or
(3) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (b) (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee, as trust funds in
trust for the purpose, an amount (said amount to be immediately due and
payable to the Holders) sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore delivered
to the Trustee for cancelation, for principal, premium, if any, and
interest to the date of such deposit (in the case of Securities which
have become due and payable), or to the Maturity or Redemption Date, as
the case may be;
(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
<PAGE> 104
92
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
SECTION 11.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 5.03, all money deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying
Agent is unable to apply any money in accordance with Section 11.02 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
<PAGE> 105
93
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability. No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security or coupon, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or coupons or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Securities.
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
<PAGE> 106
94
The minimum amount of any sinking fund payment provided for by
the terms of 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 Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining thereto
and (ii) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee and the Security Registrar
an Officers' Certificate specifying (i) the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, (ii) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 13.02, and (iii) that none of such
Securities has theretofore been so credited and stating the basis for such
credit, and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each
<PAGE> 107
95
sinking fund payment date the Security Registrar shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 4.03 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 4.04.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 4.06 and 4.07 and shall
be subject to Section 4.08.
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement To Subordinate. The Company, for
itself, its successors and assigns, covenants and agrees, and each Holder of a
Security by his acceptance thereof, likewise covenants and agrees, that the
payment of the principal and premium, if any, and interest on each and all of
the Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness and, subject to the provisions of Section 14.09, General
Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities. Upon any distribution of assets of
the Company upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise (subject
to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
Holders thereof (and, upon the General Obligations and the creditors in respect
thereof with respect to the Securities and the Holders thereof) by a lawful plan
of reorganization under applicable bankruptcy law);
(i) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full in accordance with the terms of
such Senior Indebtedness of the principal thereof, premium, if any, and
the
<PAGE> 108
96
interest due thereon (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of
the Company under any applicable bankruptcy, insolvency, or similar law
now or hereafter in effect) before the Holders of the Securities are
entitled to receive any payment upon the principal of or premium, if
any, or interest on indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article Fourteen, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, in
accordance with the priorities then existing among holders of Senior
Indebtedness for payment of the aggregate amounts remaining unpaid on
account of the principal of and premium, if any, and interest
(including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under
any applicable bankruptcy, insolvency or similar law now or hereafter
in effect) on the Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; it being
understood that if the Holders of Securities shall fail to file a
proper claim in the form required by any proceeding referred to in this
subparagraph (ii) prior to 30 days before the expiration of the time to
file such claim or claims, then the holders of Senior Indebtedness are
hereby authorized to file an appropriate claim or claims for and on
behalf of the Holders of Securities in the form required in any such
proceeding (as are the
<PAGE> 109
97
creditors in respect of General Obligations in the event Section 14.09
is applicable); and
(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinate to the payment of the Securities, shall be received by the
Trustee or Holders of the Securities before all Senior Indebtedness is
paid in full, such payment or distribution shall be held in trust for
the benefit of and shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions hereof of cash, property or securities otherwise distributable to
the Senior Indebtedness shall, as between the Company, its creditors, other than
the holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Securities. It is
understood that the provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Indebtedness (and, in the
<PAGE> 110
98
case of Section 14.09, the Holders of the Securities, on the one hand, and
creditors in respect of General Obligations) on the other hand. Nothing
contained in this Article Fourteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its
creditors, other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute
(and which, subject to the rights under this Article Fourteen of the holders of
the Senior Indebtedness and the rights under Section 14.09 of creditors in
respect of General Obligations, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms or to affect
the relative rights of the Holders of the Securities and creditors of the
Company, other than the holders of the Senior Indebtedness and creditors in
respect of General Obligations, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture, subject
to the rights, if any, under this Article Fourteen of the holders of Senior
Indebtedness and under Section 14.09 of creditors in respect of General
Obligations in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 8.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending or upon a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders of the
Securities 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 and the creditors in respect of General Obligations,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fourteen. In
the absence of any such liquidating trustee, agent or other person, the Trustee
shall be entitled to rely upon a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or representative on behalf
of such holder) or
<PAGE> 111
99
a creditor in respect of General Obligations as evidence that such Person is a
holder of Senior Indebtedness (or is such a trustee or representative) or a
creditor in respect of General Obligations, as the case may be. In the event
that the Trustee determines, in good faith, that further evidence is required
with respect to the right of any Person, as a holder of Senior Indebtedness or a
creditor in respect of General Obligations, to participate in any payment or
distribution pursuant to this Section or Section 14.09, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness or General Obligations held by such Person,
as to the extent to which such Person is entitled to participation in such
payment or distribution, and as to other facts pertinent to the rights of such
Person under this Section or Section 14.09, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
The obligations of the Company in respect of the Securities
shall rank on a parity with the Existing Subordinated Indebtedness and any other
obligations of the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or
creditors in respect of General Obligations, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically set
forth in this Article, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness or creditors in respect of General
Obligations shall be read into this Indenture against the Trustee. The Trustee,
however, shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness or creditors in respect of General Obligations, and shall not be
liable to any such holders or creditors if it shall mistakenly pay over or
distribute to or on behalf of Holders of Securities or the Company moneys or
assets to which any holders of Senior Indebtedness or creditors in respect of
General Obligations shall be entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event
of Default under Senior Indebtedness. In the event and during the continuation
of any default in the payment of principal of, or premium, if any, or interest
on, any Senior Indebtedness beyond any applicable period of grace, or in the
event that any event of default with
<PAGE> 112
100
respect to any Senior Indebtedness shall have occurred and be continuing, or
would occur as a result of the payment referred to hereinafter, permitting the
holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof, then, unless and until such default
or event of default shall have been cured or waived or shall have ceased to
exist, no payment of principal of, or premium or interest on the Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities, shall be made by the Company.
SECTION 14.04. Payments on Securities Permitted. Nothing
contained in this Indenture or in any of the Securities shall (i) impair, as
between the Company and Holders of Securities, the obligation of the Company to
make, or prevent the Company from making, at any time except as provided in
Sections 14.02, 14.03, 14.08 and 14.09, payments of principal of or premium, if
any, or interest (including interest accruing subsequent to the commencement of
any proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect) on
the Securities, as and when the same shall become due and payable in accordance
with the terms of the Securities, (ii) affect the relative rights of the Holders
of the Securities and creditors of the Company other than the holders of the
Senior Indebtedness of the Company and the creditors in respect of General
Obligations, (iii) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
thereunder, subject to the rights, if any, under Article Fourteen of the holders
of Senior Indebtedness and the creditors in respect of General Obligations in
respect of cash, property or securities of the Company received upon the
exercise of such remedy, or (iv) prevent the application by the Trustee or any
Paying Agent of any moneys deposited with it hereunder to the payment of or on
account of the principal of or premium, if any, or interest on the Securities or
prevent the receipt by the Trustee or any Paying Agent of such moneys, if, prior
to the second Business Day prior to such deposit, the Trustee or such Paying
Agent did not have written notice of any event prohibiting the making of such
deposit by the Company.
SECTION 14.05. Authorization of Holders to Trustee To Effect
Subordination. Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee
<PAGE> 113
101
in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Fourteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, but
subject to Section 14.04 hereof, neither the Trustee nor any Paying Agent shall
be charged with knowledge of the existence of any Senior Indebtedness or General
Obligations or of any event which would prohibit the making of any payment of
moneys to or by the Trustee or such Paying Agent, unless and until the Trustee
or such Paying Agent shall have received written notice thereof from the Company
or from the holder of any Senior Indebtedness or from the representative of any
such holder or from any creditor in respect of General Obligations.
SECTION 14.07. Right of Trustee To Hold Senior Indebtedness or
General Obligations. The Trustee shall be entitled to all of the rights set
forth in this Article in respect of any Senior Indebtedness or General
Obligation at any time held by it in its individual capacity to the same extent
as any other holder of such Senior Indebtedness or creditor in respect of such
General Obligation and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder or creditor.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 8.07.
SECTION 14.08. Article Fourteen Not To Prevent Defaults or
Events of Default. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article shall not be construed as preventing the
occurrence of a Default or an Event of Default.
SECTION 14.09. Securities To Rank Pari Passu with Existing
Subordinated Indebtedness; Payment of Proceeds in Certain Cases. (i) Subject to
the provisions of this Section and to any provisions established or determined
with respect to Securities of any series pursuant to Section 3.01, the
Securities shall rank pari passu in right of payment with the Existing
Subordinated Indebtedness.
<PAGE> 114
102
(ii) Upon the occurrence of any of the events specified in
the first paragraph of Section 14.02, the provisions of that Section
and the corresponding provisions of each indenture or other instrument
or document establishing or governing the terms of any Existing
Subordinated Indebtedness shall be given effect on a pro rata basis to
determine the amount of cash, property or securities which may be
payable or deliverable as between the holders of Senior Indebtedness,
on the one hand, and the Holders of the Securities and holders of
Existing Subordinated Indebtedness, on the other hand.
(iii) If, after giving effect to the provisions of Section
14.02, and the respective corresponding provisions of each indenture or
other instrument or document establishing or governing the terms of any
Existing Subordinated Indebtedness on such pro rata basis, any amount
of cash, property or securities shall be available for payment or
distribution in respect of the Securities ("Excess Proceeds"), and any
creditors in respect of General Obligations shall not have received
payment in full of all amounts due or to become due on or in respect of
such General Obligations (and provision shall not have been made for
such payment in money or money's worth), then such Excess Proceeds
shall first be applied (ratably with any amount of cash, property or
securities available for payment or distribution in respect of any
other indebtedness of the Company that by its express terms provides
for the payment over of amounts corresponding to Excess Proceeds to
creditors in respect of General Obligations) to pay or provide for the
payment of the General Obligations remaining unpaid, to the extent
necessary to pay all General Obligations in full, after giving effect
to any concurrent payment or distribution to or for creditors in
respect of General Obligations. Any Excess Proceeds remaining after
payment (or provision for payment) in full of all General Obligations
shall be available for payment or distribution in respect of the
Securities.
(iv) In the event that, notwithstanding the foregoing
provisions of subsection (iii) of this Section, the Trustee or Holder
of any Security shall, in the circumstances contemplated by such
subsection, have received any payment or distribution of assets of the
Company of any kind or character, whether in cash,
<PAGE> 115
103
property or securities, before all General Obligations are paid in full
or payment thereof duly provided for, and if such fact shall, at or
prior to the time of such payment or distribution have been made known
to the Trustee or, as the case may be, such Holder, then and in such
event, subject to any obligation that the Trustee or such Holder may
have pursuant to Section 14.02, such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for
payment in accordance with subsection (iii).
(v) Subject to the payment in full of all General
Obligations, the Holder of the Securities shall be subrogated (equally
and ratably with the holders of all indebtedness of the Company that by
its express terms provides for the payment over of amounts
corresponding to Excess Proceeds to creditors in respect of General
Obligations and is entitled to like rights of subrogation) to the
rights of the creditors in respect of General Obligations to receive
payments or distributions of cash, property or securities applicable to
the General Obligations until the principal of and interest on the
Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to creditors in respect of General
Obligations of any cash, property or securities to which Holders of the
Securities or the Trustee would be entitled except for the provisions
of this Section, and no payments over pursuant to the provisions of
this Section to creditors in respect of General Obligations by Holders
of Securities or the Trustee, shall, as among the Company, its
creditors (other than creditors in respect of General Obligations) and
the Holders of Securities be deemed to be a payment or distribution by
the Company to or on account of the Securities.
(vi) The provisions of subsections (iii), (iv) and (v) of this
Section are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and
the creditors in respect of General Obligations, on the other hand,
after giving effect to the rights of the holders of Senior
Indebtedness, as provided in this Article. Nothing contained in
subsections (iii), (iv) and (v) of this Section is intended to or shall
affect the
<PAGE> 116
104
relative rights against the Company of the Holders of the Securities
and (a) the holders of Senior Indebtedness, (b) the holders of Existing
Subordinated Indebtedness or (c) other creditors of the Company other
than creditors in respect of General Obligations.
ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article. Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Securities of such series) in
accordance with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is
subject to repayment in whole or in part at the option of the Holder thereof on
a Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option; Notice. Each Holder
desiring to exercise such Holder's option for repayment shall, as conditions to
such repayment, surrender the Security to be repaid in whole or in part together
with written notice of the exercise of such option at any office or agency of
the Company in a Place of Payment, not less than 30 nor more than 45 days prior
to the Repayment Date; provided, however, that surrender of Bearer Securities
together with written notice of exercise of such option shall be made at an
office or agency located outside the United States except as otherwise provided
in Section 5.02. Such notice, which shall be irrevocable, shall specify the
principal amount of such Security to be repaid, which shall be equal to the
minimum authorized denomination for such Security or an integral multiple
thereof, and shall identify the Security to be repaid and, in the case of a
partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
<PAGE> 117
105
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series and tenor
of any authorized denomination specified in the foregoing notice, in an
aggregate principal amount equal to any portion of the principal of the
Registered Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series and tenor of any
authorized denomination or denominations specified in the foregoing notice, in
an aggregate principal amount equal to any portion of the principal of the
Security so surrendered which is not to be repaid; provided, however, that the
issuance of a Registered Security therefor shall be subject to applicable laws
and regulations, including provisions of the United States federal income tax
laws and regulations in effect at the time of the exchange; neither the Company,
the Trustee nor the Security Registrar shall issue Registered Securities for
Bearer Securities if it has received an Opinion of Counsel that as a result of
such issuance the Company would suffer adverse consequences under the United
States federal income tax laws then in effect and the Company has delivered to
the Trustee a Company Order directing the Trustee not to make
<PAGE> 118
106
such issuances thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders thereof who give notice and surrender their
Securities in accordance with Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 15.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price, in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate prescribed therefor by such Securities from time to time until payment
in full of such principal amount.
<PAGE> 119
107
ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be Called. If
Securities of a series are issuable in whole or in part as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
by this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The
Trustee may at any time call a meeting of Holders of Securities of any series
issuable in whole or in part as Bearer Securities for any purpose specified in
Section 16.01, to be held at such time and at such place in the City of
Columbus, Ohio, the Borough of Manhattan, The City of New York, or in London as
the Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any such series shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose specified in Section 16.01,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Columbus, Ohio, the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (i) of this Section.
<PAGE> 120
108
SECTION 16.03. Persons Entitled To Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum, Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of a greater percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such greater
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence of
a quorum in any other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 16.02(i), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to Section 9.02, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders
<PAGE> 121
109
of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such greater percentage in
principal amount of the Outstanding Securities of that series; and provided
further that, except as limited by the provisos to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a majority
in principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.04 and the appointment of any proxy shall be proved in the manner
specified in Section 1.04 or, in the case of Bearer Securities, by having the
signature of the person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 1.04
<PAGE> 122
110
to certify to the holding of Bearer Securities. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.04 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 16.02(ii), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 16.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
<PAGE> 123
111
resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 16.02 and, if
applicable, Section 16.04. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
The Chase Manhattan Bank hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
<PAGE> 124
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
BANC ONE CORPORATION,
by__________________________________
Attest:
________________________ [CORPORATE SEAL]
THE CHASE MANHATTAN BANK,
Trustee,
by__________________________________
Attest:
________________________ [CORPORATE SEAL]
<PAGE> 125
STATE OF OHIO, )
) ss.:
COUNTY OF FRANKLIN )
On this day of February, 1997, before me personally
came to me known, , who, being by me duly sworn, did
depose and say that he resides at ; that he is Treasurer of BANC
ONE CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the corporate 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
[Notarial Seal]
<PAGE> 126
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK,)
On this day of February, 1997 before me personally
appeared , to me known, who, being by me duly sworn,
did depose and say that he resides at ; that he is a
of THE CHASE MANHATTAN BANK, one of the parties described
in and which executed the foregoing instrument; that he knows the corporate 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
[Notarial Seal]
<PAGE> 1
Exhibit 5
February 26, 1997
To: The Directors of BANC ONE CORPORATION
This opinion is being provided by the undersigned, as Senior Vice President and
General Counsel of BANC ONE CORPORATION ("BANC ONE"). In such capacity I, or
attorneys under my supervision, have represented BANC ONE in connection with
the filing with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), of a
Registration Statement on Form S-3, which also constitutes Post-Effective
Amendment No. 1 to the Registration Statement on Form S-3, File No. 33-64195
(together, the "Registration Statement"), for the purpose of registering under
the Securities Act one or more series of its unsecured debt securities ("Debt
Securities"), which may be either senior or subordinated in priority of
payment.
In rendering the opinions set forth below, I or attorneys under my supervision
have examined originals, or copies certified or otherwise identified to my
satisfaction, of such documents, corporate records and other instruments as I
have deemed necessary or appropriate for the purposes of this opinion,
including without limitation (i) the form of senior indenture filed as
Exhibit 4.1 to the Registration Statement (the "Senior Indenture") and (ii) the
form of subordinated indenture filed as Exhibit 4.2 to the Registration
Statement (the "Subordinated Indenture" and, together with the Senior Indenture,
the "Indentures").
Based upon and subject to the foregoing and after examination of such matters
of law as I have deemed applicable or relevant to this opinion, I am of the
opinion that, when (i) the Registration Statement has been filed and has become
effective under the Securities Act, (ii) the Indentures have been duly
authorized and validly executed by each party thereto, (iii) the terms of the
Debt Securities and of their issue and sale have been duly authorized by the
board of directors of BANC ONE (the "Board") and established in conformity with
the resolutions of the Board and the applicable Indenture so as not to violate
any applicable law or result in a default under or breach of any agreement or
instrument binding upon BANC ONE and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
BANC ONE and (iv) the Debt Securities have been duly executed and authenticated
in accordance with the applicable Indenture and issued and sold in the manner
contemplated by the Registration Statement, the Debt Securities will constitute
valid and binding obligations of BANC ONE, enforceable against BANC ONE in
accordance with their terms, subject as to enforceability, to the effects of
applicable bankruptcy, insolvency, moratorium, fraudulent
<PAGE> 2
Directors of BANC ONE CORPORATION
February 26, 1997
Page 2
transfer or conveyance, reorganization, receivership, conservatorship and other
similar laws now or hereafter in effect relating to the rights of creditors
generally, and subject to general principles of equity (whether applied in a
proceeding at law or in equity).
The opinions expressed herein are limited to the laws of the State of Ohio and
the federal laws of the United States of America. I hereby consent to (i) the
use and filing of this opinion as an exhibit to the Registration Statement and
to the reference to this opinion under the heading "Legal Opinions" in any
prospectus filed in connection with the Registration Statement and (ii) the
incorporation by reference of this opinion into a subsequent registration
statement filed by BANC ONE pursuant to Rule 462(b) under the Securities Act
relating to the offering covered by the Registration Statement. In giving such
consent, I do not thereby admit that I come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933 or the
General Rules and Regulations thereunder.
Very truly yours,
/s/ Steven Alan Bennett
Steven Alan Bennett
Senior Vice President and General Counsel
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
BANC ONE CORPORATION on Form S-3 of our report dated February 21, 1996 on our
audits of the consolidated financial statements of BANC ONE CORPORATION which
includes an explanatory paragraph regarding the change in method of accounting
for certain investment securities in 1994 and the change in method of
accounting for income taxes and post-retirement benefits other than pensions in
1993, as of December 31, 1995 and 1994, and for the years ended December 31,
1995, 1994 and 1993, included in BANC ONE CORPORATION's Annual Report on Form
10-K for the year ended December 31, 1995, as amended by Form 10-K/A filed on
June 27, 1996. We also consent to the reference to our firm under the caption
of "Experts" on Form S-3.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Columbus, Ohio
February 26, 1997
<PAGE> 1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ----------
----------------------------------------
THE 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)
---------------------------------------------
BANC ONE CORPORATION
(Exact name of obligor as specified in its charter)
OHIO 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
100 EAST BROAD ST.
COLUMBUS, OHIO 43271
(Address of principal executive offices) (Zip Code)
- --------------------------------------------------------------------------------
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
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> 3
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 21ST day of FEBRUARY, 1997.
THE CHASE MANHATTAN BANK
By /s/ Glenn G. McKeever
--------------------------------------------
Glenn G. McKeever
Senior Trust Officer
- 3 -
<PAGE> 4
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 September 30, 1996, in accordance with a call
made by the Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................... $ 11,095
Interest-bearing balances ................................... 4,998
Securities:
Held to maturity securities .................................... 3,231
Available for sale securities .................................. 38,078
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ............................................. 8,018
Securities purchased under agreements to resell ............. 731
Loans and lease financing receivables:
Loans and leases, net of unearned income .......$130,513
Less: Allowance for loan and lease losses ...... 2,938
Less: Allocated transfer risk reserve .......... 27
--------
Loans and leases, net of unearned income,
allowance, and reserve ...................................... 127,548
Trading Assets ................................................. 48,576
Premises and fixed assets (including capitalized
leases) ..................................................... 2,850
Other real estate owned ........................................ 300
Investments in unconsolidated subsidiaries and
associated companies ........................................ 92
Customer's liability to this bank on acceptances
outstanding ................................................. 2,777
Intangible assets .............................................. 1,361
Other assets ................................................... 12,204
--------
TOTAL ASSETS ................................................... $261,859
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ......................................... $ 80,163
Noninterest-bearing ............................$30,596
Interest-bearing ............................... 49,567
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ................................................ 65,173
Noninterest-bearing ............................$ 3,616
Interest-bearing ............................... 61,557
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ..................................... 14,594
Securities sold under agreements to repurchase .............. 14,110
Demand notes issued to the U.S. Treasury ....................... 2,200
Trading liabilities ............................................ 30,136
Other Borrowed money:
With a remaining maturity of one year or less ............... 16,895
With a remaining maturity of more than one year ............. 449
Mortgage indebtedness and obligations under capitalized
leases ...................................................... 49
Bank's liability on acceptances executed and outstanding ....... 2,764
Subordinated notes and debentures .............................. 5,471
Other liabilities .............................................. 13,997
TOTAL LIABILITIES .............................................. 246,001
-------
Limited-Life Preferred stock and related surplus ............... 550
EQUITY CAPITAL
Common stock ................................................... 1,209
Surplus ........................................................ 10,176
Undivided profits and capital reserves ......................... 4,385
Net unrealized holding gains (Losses)
on available-for-sale securities ............................... (481)
Cumulative foreign currency translation adjustments ............ 19
TOTAL EQUITY CAPITAL ........................................... 15,308
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .................................... $261,859
</TABLE> ========
I, Joseph L. Sclafani, S.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 )
EDWARD D. MILLER ) DIRECTORS
THOMAS G. LABRECQUE )
- 5 -
<PAGE> 1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ---------
----------------------------------------
THE 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)
---------------------------------------------
BANC ONE CORPORATION
(Exact name of obligor as specified in its charter)
OHIO 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
100 EAST BROAD ST.
COLUMBUS, OHIO 43271
(Address of principal executive offices) (Zip Code)
- --------------------------------------------------------------------------------
SENIOR DEBT SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
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> 3
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 21ST day of FEBRUARY, 1997.
THE CHASE MANHATTAN BANK
By ____________________________________
Glenn G. McKeever
Senior Trust Officer
- 3 -
<PAGE> 4
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 21ST day of FEBRUAY, 1997.
THE CHASE MANHATTAN BANK
By /s/ Glenn G. McKeever
----------------------------------------
Glenn G. McKeever
Senior Trust Officer
- 3 -
<PAGE> 5
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 September 30, 1996, in accordance with a call
made by the Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................... $ 11,095
Interest-bearing balances ................................... 4,998
Securities:
Held to maturity securities .................................... 3,231
Available for sale securities .................................. 38,078
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold .......................................... 8,018
Securities purchased under agreements to resell ............. 731
Loans and lease financing receivables:
Loans and leases, net of unearned income .......$130,513
Less: Allowance for loan and lease losses ...... 2,938
Less: Allocated transfer risk reserve .......... 27
--------
Loans and leases, net of unearned income,
allowance, and reserve ...................................... 127,548
Trading Assets ................................................. 48,576
Premises and fixed assets (including capitalized
leases) ..................................................... 2,850
Other real estate owned ........................................ 300
Investments in unconsolidated subsidiaries and
associated companies ........................................ 92
Customer's liability to this bank on acceptances
outstanding ................................................. 2,777
Intangible assets .............................................. 1,361
Other assets ................................................... 12,204
-------
TOTAL ASSETS ................................................... $261,859
=======
</TABLE>
- 4 -
<PAGE> 6
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ......................................... $ 80,163
Noninterest-bearing ............................$30,596
Interest-bearing ............................... 49,567
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ................................................... 65,173
Noninterest-bearing ............................$ 3,616
Interest-bearing ............................... 61,557
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ..................................... 14,594
Securities sold under agreements to repurchase .............. 14,110
Demand notes issued to the U.S. Treasury ....................... 2,200
Trading liabilities ............................................ 30,136
Other Borrowed money:
With a remaining maturity of one year or less ............... 16,895
With a remaining maturity of more than one year ............. 449
Mortgage indebtedness and obligations under capitalized
leases ...................................................... 49
Bank's liability on acceptances executed and outstanding ....... 2,764
Subordinated notes and debentures .............................. 5,471
Other liabilities .............................................. 13,997
TOTAL LIABILITIES .............................................. 246,001
--------
Limited-Life Preferred stock and related surplus ............... 550
EQUITY CAPITAL
Common stock ................................................... 1,209
Surplus ........................................................ 10,176
Undivided profits and capital reserves ......................... 4,385
Net unrealized holding gains (Losses)
on available-for-sale securities ............................... (481)
Cumulative foreign currency translation adjustments ............ 19
TOTAL EQUITY CAPITAL ........................................... 15,308
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .................................... $261,859
========
</TABLE>
I, Joseph L. Sclafani, S.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 )
EDWARD D. MILLER ) DIRECTORS
THOMAS G. LABRECQUE )
- 5 -
