<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 17, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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STAR BANC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
OHIO
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
<CAPTION>
OHIO 31-0838189
<S> <C>
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
STAR BANK CENTER
425 WALNUT STREET
P.O. BOX 1038
CINCINNATI, OHIO 45202
(513) 632-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
THOMAS J. LAKIN, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL
STAR BANK CENTER
425 WALNUT STREET
CINCINNATI, OHIO 45202
(513) 632-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Effective Date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
AGGREGATE PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES BEING REGISTERED(1)(2) REGISTERED PER UNIT OFFERING PRICE FEE
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Debt Securities, Preferred Stock, without
par value, Depositary Shares, Common
Stock, par value $5.00 per share(3), and
Securities Warrants....................... -- -- $500,000,000(4)(5)(6) $151,515
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</TABLE>
(1) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) Includes such indeterminate number of Debt Securities, Preferred Stock and
Common Stock as may be issued upon exercise of Securities Warrants or in
exchange for, or upon conversion of, securities registered hereunder.
(3) Attached to the Common Stock are Preferred Share Purchase Rights that will
not be exercisable or evidenced separately from the Common Stock prior to
the occurrence of certain events.
(4) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including European Currency Units.
(5) No separate consideration will be received for Common Stock, Preferred Stock
or Depositary Shares that are issued upon conversion of Debt Securities,
Preferred Stock or Depositary Shares.
(6) Calculated pursuant to Rule 457(o) under the Securities Act.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
PROSPECTUS
STAR BANC CORPORATION
DEBT SECURITIES AND DEBT WARRANTS
PREFERRED SHARES AND PREFERRED SHARE WARRANTS
COMMON STOCK AND COMMON STOCK WARRANTS
UNITS
------------------------
Star Banc Corporation (the "Corporation") intends to offer from time to
time in one or more series its unsecured debt securities, which may be senior
(the "Senior Securities") or subordinated (the "Subordinated Securities," and,
together with the Senior Securities, the "Debt Securities"), warrants to
purchase the Debt Securities ("Debt Warrants"), shares of common stock, par
value $5.00 per share ("Common Stock"), shares of preferred stock, without par
value (the "Preferred Shares"), interests in which may be represented by
depositary shares ("Depositary Shares"), warrants to purchase the Preferred
Shares or Depositary Shares ("Preferred Share Warrants") or warrants to purchase
Common Stock ("Common Stock Warrants," and, together with the Debt Warrants and
Preferred Share Warrants, the "Securities Warrants"), with an aggregate initial
public offering price (including the exercise price of any Securities Warrants)
of up to $500,000,000 or the equivalent thereof in one or more foreign
currencies or composite currencies, including European Currency Units ("ECUs"),
on terms to be determined at the time of sale. The Debt Securities, Common
Stock, Preferred Shares, Depositary Shares and Securities Warrants may be
offered separately or as a part of units consisting of one or more such
securities ("Units," and, together with the Debt Securities, Common Stock,
Preferred Shares, Depositary Shares and Securities Warrants, the "Offered
Securities"), in separate series, in amounts, at prices and on terms to be set
forth in one or more supplements to this Prospectus (a "Prospectus Supplement").
The Senior Securities will rank pari passu with all other unsecured Senior
Debt (as defined herein) of the Corporation. The Subordinated Securities will be
subordinated to all existing and future Senior Debt of the Corporation.
Specific terms of the Offered Securities, including such terms as, where
applicable, (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, currency, denominations, maturity, premium, rate and
time of payment of interest, terms for redemption at the option of the
Corporation or repayment at the option of the holder, terms for sinking fund
payments, terms for conversion into other Offered Securities and the initial
public offering price; (ii) in the case of Preferred Shares, the specific title
and stated value, aggregate number of shares or fractional interests therein,
any dividend, liquidation, redemption, conversion, voting and other rights, the
initial public offering price, and whether interests in the Preferred Shares
will be represented by Depositary Shares; (iii) in the case of Common Stock the
aggregate number of shares and the initial public offering price; and (iv) in
the case of Securities Warrants, where applicable, the duration, offering price,
exercise price and detachability, will be set forth in the accompanying
Prospectus Supplement. Units may be issued in amounts, at prices, on terms and
containing such conditions, covenants and other provisions, and consisting of
such Offered Securities, as will be set forth in a Prospectus Supplement. The
Prospectus Supplement will also contain information, where applicable, about
certain United States federal income tax considerations relating to, and any
listing on a securities exchange of, the Offered Securities covered by the
Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time, or to or through underwriters or dealers, which may include
affiliates of the Corporation. If any agents or underwriters are involved in the
sale of any of the Offered Securities, their names, and any applicable fee,
commission, purchase price or discount arrangements with them, will be set
forth, or will be calculable from the information set forth, in such Prospectus
Supplement.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
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THE DEBT SECURITIES ARE UNSECURED OBLIGATIONS OF THE CORPORATION AND NO OFFERED
SECURITIES ARE SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR
NONBANK SUBSIDIARY OF THE CORPORATION, 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 OR ANY PROSPECTUS SUPPLEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1997.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Securities and
Exchange Commission (the "Commission") are incorporated in and made a part of
this Prospectus by reference: (i) Annual Report on Form 10-K for the year ended
December 31, 1995; (ii) Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1996, June 30, 1996 and September 30, 1996; (iii) Registration
Statement on Form 8-A dated May 5, 1994; and (iv) Registration Statement on Form
8-A dated April 15, 1994.
All documents filed by the Corporation with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Prospectus and
prior to the termination of the offering of the Offered Securities offered
hereby shall be deemed to be incorporated by reference in 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 or in the accompanying Prospectus Supplement 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.
The Corporation will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any or all of the information incorporated
herein by reference (other than exhibits, unless such exhibits are specifically
incorporated by reference in such documents). Written requests for such copies
should be directed to David M. Moffett, Chief Financial Officer, Star Banc
Corporation, Star Bank Center, 425 Walnut Street, P.O. Box 1038, Cincinnati,
Ohio 45202. Telephone requests may be directed to (513) 632-4000.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Exchange Act, and, in accordance therewith, files reports and other information
with the Commission. Such reports, proxy and information statements and other
information filed by the Corporation can be inspected and copied at the public
reference facilities of the Commission, Room 1024, 450 Fifth Street N.W.,
Washington, D.C. 20549, and at the regional offices of the Commission located at
Seven World Trade Center, Suite 1300, New York, New York 10048, and at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and
copies of such materials 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, copies of such material can be obtained from the
Commission's Internet site (http://www.sec.gov). The Common Stock is listed on
the New York Stock Exchange, Inc. (the "NYSE"). Reports, proxy and information
statements and other information concerning the Corporation can also be
inspected at the offices of the NYSE at 20 Broad Street, New York, New York
10005.
Additional information regarding the Corporation and the Offered Securities
offered hereby is contained in the registration statement (the "Registration
Statement") and the exhibits relating thereto in respect of the Offered
Securities offered hereby, filed with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). For further information pertaining to
the Corporation and the Offered Securities offered hereby, reference is made to
the Registration Statement and the exhibits thereto, which may be inspected
without charge at the office of the Commission at 450 Fifth Street N.W.,
Washington, D.C. 20549, and copies thereof may be obtained from the Commission
at prescribed rates. As permitted by the rules and regulations of the
Commission, this Prospectus omits certain of the information contained in the
Registration Statement. Statements contained herein concerning the provisions of
any document filed as an exhibit to the Registration Statement are not
necessarily complete and reference is made to the copy of such document so
filed. Such statements are qualified in their entirety by such reference.
------------------------
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars," "U.S.
dollars," or "U.S. $").
2
<PAGE> 4
THE CORPORATION
The Corporation is organized under the laws of the State of Ohio and
maintains its executive offices in Cincinnati, Ohio. The Corporation is a bank
holding company (under the Bank Holding Company Act of 1956, as amended (the
"BHCA")) registered with the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board"), and, accordingly, is subject to regulation and
examination by the Federal Reserve Board.
As a result of a 1993 and 1996 restructuring of certain of its Ohio and
Indiana banks, the Corporation presently directly holds one wholly-owned
national bank subsidiary: Star Bank, N.A. (the "Bank"). Through the Bank and its
260 banking offices, the Corporation engages in the commercial banking and trust
business and provides a full range of consumer, wholesale, commercial, trust and
investment products (including, but not limited to deposits, individual
retirement accounts ("IRAs"), and mutual funds) and investment services in Ohio,
Kentucky and Indiana. The Bank offers corporate loans, commercial leasing,
commercial and residential mortgages, real estate construction lending, and a
variety of consumer loan products (including installment loans, credit cards and
retail leasing). None of the foregoing types of loans exceeds 30% of the Bank's
diversified loan portfolio. The Bank also offers cash management and
international trade services to commercial clients.
The Corporation has expanded significantly by acquisition in the last five
years. Recently, the Corporation, in three separate transactions, purchased 24
branch offices in the Columbus, Ohio area, 47 branch offices in the Cleveland
and Akron, Ohio areas, and 28 additional branches in the Cleveland, Ohio area;
and, on July 26, 1996, the Bank acquired 5 additional branches in Indiana. Most
recently, the Bank entered into an Agreement to acquire 7 branch offices in the
Southwestern Ohio area from Amerifirst Bank, N.A. This transaction is expected
to close in the first quarter of 1997. The Corporation continues to explore
other acquisition opportunities in its market area.
The Corporation's other active subsidiaries include: Miami Valley Insurance
Company, an Arizona corporation engaged solely in the business of issuing credit
life and accident and health insurance in connection with the lending activities
of the Corporation's Ohio and Indiana branch offices; First National Cincinnati
Corporation, a subsidiary of the Bank that owns and operates the Corporation's
headquarters building; and Star Banc Finance, Inc., a consumer finance company
regulated by the Federal Reserve Board that offers a broad mix of credit
products and services, including direct and indirect auto loans, second
mortgages and personal loans.
The Corporation's principal executive offices are located at Star Bank
Center, 425 Walnut Street, Cincinnati, Ohio 45202, and its telephone number is
(513) 632-4000.
Additional information concerning the Corporation is included in the
documents incorporated by reference herein. See "INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE."
3
<PAGE> 5
CERTAIN REGULATORY MATTERS
GENERAL
As a bank holding company, the Corporation is subject to supervision and
examination by the Federal Reserve Board. Under the BHCA, a bank holding company
generally may not, directly or indirectly, acquire the ownership or control of
more than 5% of the voting securities or all or substantially all of the assets
of any company, including a bank, without the prior approval of the Federal
Reserve Board. In addition, under the BHCA a bank holding company is generally
prohibited from engaging in nonbanking activities, subject to certain
exceptions. Proposals to change the laws and regulations governing the banking
industry are frequently raised in Congress, in the state legislatures and before
the various bank regulatory agencies. The likelihood and timing of any changes
and the impact such changes might have on the Bank and its affiliates are
difficult to determine.
The Bank is subject to supervision and examination by applicable federal
and state banking agencies. The Bank is primarily regulated by the Office of the
Comptroller of the Currency (the "OCC"). The deposits of the Bank are primarily
insured by the Bank Insurance Fund (the "BIF"); and certain deposits of the Bank
are insured by the Savings Association Insurance Fund (the "SAIF"); and, for
that reason, the Bank is subject to regulation by the Federal Deposit Insurance
Corporation (the "FDIC"). The Bank is also affected by the fiscal and monetary
policies of the federal government and its agencies, including the Federal
Reserve Board. An important purpose of these policies is to curb inflation and
control recessions through control of the supply of money and credit. The
Federal Reserve Board uses its powers to establish reserve requirements of
insured depository institutions, to set the discount rate on its extensions of
credit to insured depository institutions and to conduct open market operations
in United States government securities so as to influence the supply of money
and credit. These policies have a direct effect on the amount of bank loans and
deposits and on the interest rates charged on loans and paid on deposits, with
the result that federal policies have a material effect on bank earnings. Future
policies of the Federal Reserve Board and other authorities cannot be predicted
nor can their effect on future Bank earnings be predicted.
To the extent that the following information describes statutory or
regulatory provisions, it is qualified in its entirety by reference to such
statutory or regulatory provisions.
DIVIDEND RESTRICTIONS
Federal law imposes limitations on the payment of dividends by the Bank.
The amount of dividends that may be paid by the Bank is limited to the lesser of
the amounts calculated under a "recent earnings" test and an "undivided profits"
test. Under the recent earnings test, a dividend may not be paid if the total of
all dividends declared by a bank in any calendar year is in excess of the
current year's net income combined with the retained net income of the two
preceding years, unless the bank obtains the approval of the OCC. Under the
"undivided profits" test, a dividend may not be paid in excess of a bank's
"undivided profits".
Under these provisions the Bank could have declared, as of September 30,
1996, aggregate dividends of at least $100 million, without obtaining prior
regulatory approval and without reducing the capital of the Bank below "well
capitalized" minimum regulatory levels.
If, in the opinion of the applicable regulatory authority, a bank under its
jurisdiction is engaged in or is about to engage in an unsafe or unsound
practice (which, depending on the financial condition of the bank, could include
the payment of dividends), such authority may require, after notice and hearing,
that such bank cease and desist from such practice. The Federal Reserve Board,
the OCC, and the FDIC have issued policy statements which provide that
FDIC-insured banks and bank holding companies should generally pay dividends
only out of current operating earnings.
4
<PAGE> 6
HOLDING COMPANY STRUCTURE
The Corporation is a legal entity separate and distinct from its banking
and nonbanking subsidiaries. Accordingly, the right of the Corporation, and thus
the rights of the Corporation's creditors, to participate in any distribution of
the assets or earnings of any subsidiary other than in the Corporation's
capacity as a bona fide creditor of the subsidiary is necessarily subject to the
prior satisfaction of claims of creditors of the subsidiary. The principal
sources of the Corporation's revenues are dividends and fees from its
subsidiaries.
The Bank is subject to restrictions under federal law which limit the
transfer of funds by the Bank to the Corporation and its nonbank subsidiaries,
whether in the form of loans, extensions of credit, investments or asset
purchases. Such transfers by the Bank to the Corporation or any nonbank
subsidiary are limited in amount to 10% of the Bank's capital and surplus, and,
with respect to the Corporation and all such nonbank subsidiaries, to an
aggregate of 20% of such bank's capital and surplus. Furthermore, such loans and
extensions of credit are required to be secured in specified amounts.
The Federal Reserve Board has a policy to the effect that a bank holding
company is expected to act as a source of financial and managerial strength to
its subsidiary banks and to commit resources to support such subsidiary banks.
This support may be required at times when the Corporation may not have the
resources to provide it. Any capital loan by the Corporation to the Bank is
subordinate in right of payment to deposits and to certain other indebtedness of
the Bank. In addition, the Crime Control Act of 1990 provides that, 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 will be assumed by the bankruptcy trustee and entitled to a
priority of payment.
A depository institution insured by the FDIC can be held liable for any
loss incurred by, 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.
Federal law (12 U.S.C. Section 55) permits the OCC to order the pro rata
assessment of shareholders of a national bank whose capital stock has become
impaired, by losses or otherwise, to relieve a deficiency in such national
bank's capital stock. This statute also provides for the enforcement of any such
pro rata assessment of shareholders of such national bank to cover such
impairment of capital stock by sale, to the extent necessary, of the capital
stock of any assessed shareholder failing to pay the assessment. The
Corporation, as the sole shareholder of the Bank, is subject to such provisions.
ACQUISITIONS
Effective September 29, 1995, under the provisions of the Reigle-Neal
Interstate Banking and Branching Efficiency Act of 1994 (the "Reigle-Neal Act"),
the Corporation is permitted to acquire banks located in any state. Effective
June 1, 1997, the Bank will be permitted to acquire a bank located in a state
other than the state in which the Bank is located (an "interstate merger")
through merger, consolidation or purchase of assets and assumption of
liabilities, unless the state in which either of the banks is located has opted
out of the interstate banking provisions of the Reigle-Neal Act. An interstate
merger may occur before June 1, 1997 if the states in which the merging banks
are located have enacted a law authorizing interstate bank mergers.
All of the Corporation's acquisitions of banking institutions and other
companies are subject to the prior approval of the Federal Reserve Board and any
applicable federal or state regulatory authorities. In addition, under the
provisions of the Reigle-Neal Act, bank mergers are subject to deposit
concentration limits of 10% nationwide, and 30% in any one state unless it is
the initial entry of the Corporation into the state.
5
<PAGE> 7
CAPITAL REQUIREMENTS
Under the Federal Reserve Board's risk-based capital guidelines for bank
holding companies, the minimum ratio of total capital to risk-adjusted assets
(including certain off-balance sheet items, such as stand-by letters of credit)
is 8%. At least half of the total capital is to be comprised of common
stockholders' equity, minority interests and noncumulative perpetual preferred
stock ("Tier 1 capital"). The remainder ("Tier 2 capital") may consist of hybrid
capital instruments, perpetual debt, mandatory convertible debt securities, a
limited amount of subordinated debt, other preferred stock, and a limited amount
of the allowance for credit losses. The risk-based guidelines also specify that
all intangibles, including core deposit intangibles, except for mortgage
servicing rights ("MSRs") and purchased credit card relationships ("PCCRs"), be
deducted from Tier 1 capital. The guidelines permit the nondeduction of readily
marketable MSRs and PCCRs in Tier 1 capital to the extent that (i) MSRs and
PCCRs do not collectively exceed 50% of Tier 1 capital and (ii) PCCRs do not
exceed 25% of Tier 1 capital. For such purposes, MSRs and PCCRs each are
included in Tier 1 capital only up to the lesser of (i) 90% of their fair market
value (which must be determined quarterly) and (ii) 100% of the remaining
unamortized book value of such assets. In addition, the Federal Reserve Board's
minimum "leverage ratio" (the ratio of Tier 1 capital to quarterly average total
assets) guidelines for bank holding companies provide for a minimum leverage
ratio of 3% for bank holding companies that meet certain specified criteria,
including that they have the highest regulatory rating. All other bank holding
companies are required to maintain a leverage ratio of 3% plus an additional
cushion of 1% to 2%. The guidelines also provide that banking organizations
experiencing internal growth or making acquisitions are expected to maintain
strong capital positions substantially above the minimum supervisory levels,
without significant reliance on intangible assets. Furthermore, the guidelines
indicate that the Federal Reserve Board will continue to consider a "tangible
Tier 1 leverage ratio" in evaluating proposals for expansion or new activities.
The tangible Tier 1 leverage ratio is the ratio of a banking organization's Tier
1 capital less all intangibles to total assets less all intangibles. The Bank is
also subject to capital requirements adopted by the OCC which are substantially
similar to the foregoing. At September 30, 1996, the Corporation's Tier 1
capital and "total capital" (the sum of Tier 1 and Tier 2 capital) to
risk-adjusted assets ratios were 7.66% and 10.74%, respectively, and the
Corporation's leverage ratio was 6.57%. Neither the Corporation nor the Bank has
been advised by the appropriate federal regulatory agency of any specific
leverage ratio applicable to it.
As a result of a federal law enacted in 1991 that required each federal
banking agency to revise its risk-based capital standards to ensure that those
standards take adequate account of interest rate risk, concentration of credit
risk and the risks of nontraditional activities, each of the federal banking
agencies has revised the risk-based capital guidelines described above to take
into account concentration of credit risk and risk of nontraditional activities.
In addition, the Federal Reserve Board, the FDIC and the OCC adopted a rule that
amends, effective September 1, 1995, the capital standards to include explicitly
a bank's exposure to declines in the economic value of its capital due to
changes in interest rates as a factor to be considered in evaluating a bank's
interest rate exposure. On June 26, 1996, such agencies issued a joint policy
statement that describes the process to be used to measure and assess the
exposure of a bank's net economic value to changes in interest rates. These
agencies have indicated that they do not intend to issue a rule that would
propose to establish an explicit minimum capital charge for interest rate risk
based on the level of a bank's measured interest rate exposure. In August 1996,
the federal banking agencies adopted amendments to their risk-based capital
rules to incorporate a measure for market risk in foreign exchange and commodity
activities and in the trading of debt and equity instruments. These amendments,
which become effective at year end 1997, will require banks with relatively
large trading activities to calculate a capital charge for market risk using
their own internal value-at-risk models (subject to parameters set by the
regulators) or, alternatively, risk management techniques developed by the
regulators. As a result, in addition to existing capital requirements for credit
risk, certain institutions will be required to hold capital based on the measure
of their market risk exposure. These institutions will be able to satisfy this
additional requirement, in part, by issuing short-term subordinated debt that
qualifies as Tier 3 capital. The Corporation does not believe that these recent
proposals and revisions to the capital guidelines will materially impact its
operations.
6
<PAGE> 8
FEDERAL DEPOSIT INSURANCE CORPORATION IMPROVEMENT ACT OF 1991
In December 1991, Congress enacted the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA"), which substantially revised the
bank regulatory and funding provisions of the Federal Deposit Insurance Act (the
"FDIA") and makes revisions to several other federal banking statutes. Among
other things, FDICIA requires federal banking regulators to take "prompt
corrective action" in respect of FDIC-insured depository institutions that do
not meet minimum capital requirements. FDICIA establishes five capital tiers:
"well capitalized," "adequately capitalized," "undercapitalized," "significantly
undercapitalized" and "critically undercapitalized." Under applicable OCC
regulations, an FDIC-insured depository institution is defined to be well
capitalized if it maintains a leverage ratio of at least 5%, a risk-adjusted
Tier 1 capital ratio of at least 6% and a risk-adjusted total capital ratio of
at least 10% and is not subject to a directive, order or written agreement to
meet and maintain specific capital levels. An insured depository institution is
defined to be adequately capitalized if it meets all of its minimum capital
requirements as described above under "-- Capital Requirements". An insured
depository institution will be considered undercapitalized if it fails to meet
any minimum required measure; will be considered significantly undercapitalized
if it has a risk-adjusted total capital ratio of less than 6%, risk-adjusted
Tier 1 capital ratio of less than 3% or a leverage ratio of less than 3%; and
will be considered critically undercapitalized if it fails to maintain a level
of tangible equity equal to at least 2% of total assets. An insured depository
institution may be deemed to be in a capitalization category that is lower than
is indicated by its actual capital position if it receives an unsatisfactory
examination rating.
FDICIA generally prohibits a depository institution from making any capital
distribution (including payment of a dividend) or paying any management fee to
its holding company if the depository institution would thereafter be
undercapitalized. Undercapitalized depository institutions are subject to a wide
range of limitations on operations and activities, including growth limitations,
and are required to submit a capital restoration plan. The federal banking
agencies may not accept a capital plan without determining, among other things,
that the plan is based on realistic assumptions and is likely to succeed in
restoring the depository institution's capital. In addition, for a capital
restoration plan to be acceptable, the depository institution's parent holding
company must guarantee that the institution will comply with such capital
restoration plan. The aggregate liability of the parent holding company is
limited to the lesser of (i) an amount equal to 5% of the depository
institution's total assets at the time it became undercapitalized and (ii) the
amount which is necessary (or would have been necessary) to bring the
institution into compliance with all capital standards applicable with respect
to such institution as of the time it fails to comply with the plan. If a
depository institution fails to submit an acceptable plan, it is treated as if
it were significantly undercapitalized.
Significantly undercapitalized depository institutions may be subject to a
number of requirements and restrictions, including orders to sell sufficient
voting stock to become adequately capitalized, requirements to reduce total
assets, and cessation of receipt of deposits from correspondent banks.
Critically undercapitalized institutions may not, beginning 60 days after
becoming critically undercapitalized, make any payment of principal or interest
on their subordinated debt. In addition, critically undercapitalized
institutions are subject to the appointment of a receiver or conservator.
FDICIA directs that each federal banking agency prescribe standards, by
regulation or guideline, for depository institutions relating to internal
controls, information systems, internal audit systems, loan documentation,
credit underwriting, interest rate exposure, asset growth, compensation, asset
quality, earnings, stock valuation, and such other operational and managerial
standards as the agency deems appropriate. The FDIC, in consultation with the
other federal banking agencies has adopted a final rule and guidelines with
respect to external and internal audit procedures and internal controls in order
to implement those provisions of FDICIA intended to facilitate the early
identification of problems in financial management of depository institutions.
The federal banking agencies have published final rules implementing the safety
and soundness standards required by FDICIA, including operational and managerial
standards, asset quality and earnings standards, and compensation standards. The
Corporation does not believe these standards will have a material impact on its
operations.
7
<PAGE> 9
FDICIA also contains a variety of other provisions that may affect the
operations of the Corporation, including reporting requirements, revised
regulatory standards for real estate lending, "truth in savings" provisions, and
the requirement that a depository institution give 90 days' notice to customers
and regulatory authorities before closing any branch.
Under other regulations promulgated under FDICIA, a bank cannot accept
"brokered deposits" (that is, deposits obtained through a person engaged in the
business of placing deposits with insured depository institutions or with
interest rates significantly higher than prevailing market rates) unless (i) it
is well capitalized or (ii) it is adequately capitalized and receives a waiver
from the FDIC. A bank that cannot receive brokered deposits also cannot offer
"pass-through" insurance on certain employee benefit accounts unless it provides
certain notices to affected depositors. In addition, a bank that is adequately
capitalized and that has not received a waiver from the FDIC may not pay an
interest rate on any deposits in excess of 75 basis points over certain
prevailing market rates. There are no such restrictions on a bank that is well
capitalized. Based on the above criteria and the Bank's capital ratios as of
September 30, 1996, the Bank qualifies as "well capitalized" under FDICIA and
the OCC's prompt corrective action regulations. The terminology used in FDICIA
and the prompt corrective action regulations, as described above, should not
necessarily be viewed as describing the condition or prospects of subject
depositary institutions, including the Bank.
FDIC INSURANCE
Each BIF member institution pays FDIC insurance premiums based on the
institution's annual assessment rate assigned to it by the FDIC. The assessment
rate is based on the institution's capitalization risk category and "supervisory
subgroup." An institution's capitalization risk category is based on the FDIC's
determination of whether the institution is well capitalized, adequately
capitalized or less than adequately capitalized. An institution's supervisory
subgroup is based on the FDIC's assessment of the financial condition of the
institution and the probability that FDIC intervention or other corrective
action will be required. "Subgroup A" institutions are financially sound
institutions with few minor weaknesses; "Subgroup B" institutions are
institutions that demonstrate weaknesses which, if not corrected, could result
in significant deterioration; and "Subgroup C" institutions are institutions for
which there is a substantial probability that the FDIC will suffer a loss in
connection with the institution unless effective action is taken to correct the
areas of weakness. The FDIC assessment rate schedule for BIF insured deposits,
adopted by the FDIC in 1995, ranges from zero to 27 cents per $100 of domestic
deposits, with Subgroup A institutions assessed at a rate of zero and Subgroup C
institutions assessed at a rate of 27 cents. On September 30, 1996, the
"Economic Growth and Regulatory Paperwork Reduction Act of 1996" was enacted.
The legislation, among other things, provides for the annual assessments on both
banks and savings associations to pay interest on bonds issued by the Financing
Corporation ("FICO") in connection with the cost of savings associations
insolvencies. This legislation is expected to result in BIF insurance premiums
for the Bank's BIF insured deposits in 1997 of 1.3 cents per $100 of deposits,
substantially all related to the FICO interest obligations. The FDIC may change
the assessment rate schedule BIF insured deposits on a semiannual basis. An
increase in the rate assessed against the Bank could have a material adverse
effect on the Corporation's earnings, depending on the amount of the increase.
The FDIC is authorized to terminate a depository institution's deposit
insurance upon a finding by the FDIC that the institution's financial condition
is unsafe or unsound or that the institution has engaged in unsafe or unsound
practices or has violated any applicable rule, regulation, order or condition
enacted or imposed by the institution's regulatory agency. The termination of
deposit insurance with respect to the Bank could have a material adverse effect
on the Corporation's earnings.
The Economic Growth and Regulatory Paperwork Reduction Act of 1996 also
provided for the recapitalization of the SAIF by imposing a one-time assessment
on SAIF-insured deposits. The deposits of the Bank include SAIF-insured
deposits. The effect of the legislation was to impose a one-time charge on the
Bank of approximately $5.0 million and to reduce the premium on its SAIF-insured
deposits to the same premium as for BIF insured deposits except that the
assessment for interest on the FICO obligations for 1997
8
<PAGE> 10
will be 6.4 cents per $100 of deposits. The FDIC may change the assessment rate
for such deposits on a semiannual basis.
DEPOSITOR PREFERENCE
Under the FDICIA, claims of holders of domestic deposits and certain claims
of administrative expenses and employee compensation against an FDIC-insured
depository institution, such as the Bank, have priority over other general
unsecured claims against the institution in the "liquidation or other
resolution" of the institution by a receiver.
USE OF PROCEEDS
Unless otherwise specified in an applicable Prospectus Supplement, the net
proceeds to be received by the Corporation from the sale of the Offered
Securities offered hereby will be added to the general funds of the Corporation,
and will be available for general corporate purposes, including investments in
or advances to existing or future subsidiaries, repayment of maturing
obligations and redemption of outstanding indebtedness. Pending such use, the
Corporation may temporarily invest the net proceeds or use them to reduce
short-term indebtedness.
9
<PAGE> 11
RATIOS OF EARNINGS TO FIXED CHARGES
AND TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following are the consolidated ratios of earnings to fixed charges and
to combined fixed charges and preferred stock dividends for each of the years in
the five-year period ended December 31, 1995 and for the nine months ended
September 30, 1996:
<TABLE>
<CAPTION>
NINE
MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, ---------------------------------------------
1996 1995 1994 1993 1992 1991
------------- ---- ---- ---- ---- ------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges:
Excluding interest on
deposits..................... 5.12x 3.98x 4.62x 6.77x 5.50x 3.95x
Including interest on
deposits..................... 1.73x 1.61x 1.79x 1.77x 1.48x 1.31x
Ratio of Earnings to Combined
Fixed Charges and Preferred
Stock Dividends:
Excluding interest on
deposits..................... 5.12x 3.97x 4.57x 6.37x 5.15x 3.84x
Including interest on
deposits..................... 1.73x 1.61x 1.79x 1.76x 1.47x 1.31x
</TABLE>
For purposes of computing the consolidated ratios of earnings to fixed
charges, income before income taxes plus fixed charges less capitalized interest
has been divided by fixed charges. For purposes of computing the consolidated
ratios of earnings to combined fixed charges and preferred stock dividends,
income before income taxes plus fixed charges less capitalized interest has been
divided by fixed charges and pretax earnings required to cover preferred stock
dividends. Fixed charges, excluding interest on deposits, consist of interest on
short-term borrowings and long-term debt, amortization of debt expense,
capitalized interest and one-third of net rental expense (which is deemed
representative of the interest factor). Fixed charges, including interest on
deposits, consist of the foregoing items plus interest on deposits. Pretax
earnings required to cover preferred stock dividends have been computed by
dividing preferred stock dividends by one minus the Corporation's effective
income tax rate.
10
<PAGE> 12
DESCRIPTION OF DEBT SECURITIES
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 the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be described
in the Prospectus Supplement relating to such Debt Securities.
The Senior Securities are to be issued under an indenture (the "Senior
Indenture") between the Corporation and the trustee named in the applicable
Prospectus Supplement as trustee (the "Senior Trustee"). The Subordinated
Securities are to be issued under an indenture (the "Subordinated Indenture")
between the Corporation and the trustee named in the applicable Prospectus
Supplement as trustee (the "Subordinated Trustee" and, together with the Senior
Trustee, the "Trustees"). The forms of the Senior Indenture and the Subordinated
Indenture (collectively, the "Indentures") are exhibits to the Registration
Statement. The following summaries of certain provisions of the Indentures do
not purport to be complete and are qualified in their entirety by reference to
the provisions of the Indentures.
Numerical references in parentheses below are to sections of the
Indentures. Wherever particular sections or defined terms of the Indentures are
referred to, it is intended that such sections or defined terms shall be
incorporated herein by reference. Unless otherwise indicated, capitalized terms
shall have the meanings ascribed to them in the Indentures.
GENERAL
Each Indenture provides that Debt Securities in an unlimited amount may be
issued thereunder from time to time in one or more series. (SECTION 301)
The Senior Securities will be unsecured and will rank pari passu with other
unsecured indebtedness of the Corporation. The Subordinated Securities will be
unsecured and will rank pari passu with other subordinated debt of the
Corporation, and, together with such other subordinated debt, will be
subordinated and junior in right of payment to the prior payment in full of the
Senior Debt of the Corporation as described below under "-- Subordination."
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Debt Securities for the terms of such Debt Securities,
including, where applicable, (i) the designation and any limit on the aggregate
principal amount of such Debt Securities; (ii) the price (expressed as a
percentage of the aggregate principal amount thereof) at which such Debt
Securities will be issued; (iii) the date or dates on which such Debt Securities
will mature or method by which such dates can be determined and the dates on
which premiums, if any, will be payable; (iv) the currency or currencies in
which such Debt Securities are being sold and are denominated and the
circumstances, if any, under which any Debt Securities may be payable in a
currency other than the currency in which such Debt Securities are denominated
and, if so, the exchange rate, the exchange rate agent and, if the Holder of any
such Debt Securities may elect the currency in which payments thereon are to be
made, the manner of such election; (v) the denominations in which any Debt
Securities which are Registered Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof, and the denomination
or denominations in which any Debt Securities which are Bearer Securities will
be issuable, if other than the denomination of $5,000; (vi) the rate or rates
(which may be fixed or variable) at which such Debt Securities will bear
interest, which rate may be zero in the case of certain Debt Securities issued
at an issue price representing a discount from the principal amount payable at
maturity; (vii) the date from which interest on such Debt Securities will
accrue, the dates on which such interest will be payable or the method by which
such dates can be determined, the date on which payment of such interest will
commence and the circumstances, if any, in which the Corporation may defer
interest payments; (viii) the dates on which, and the price or prices at which,
such Debt Securities will, pursuant to any mandatory sinking fund provision, or
may, pursuant to any optional redemption provision, be redeemed or repaid, and
the other terms and provisions of any such optional redemption or required
repayment; (ix) the place or places where the principal (and premium if any) and
interest shall be payable; (x) in the case of the Subordinated Securities, any
terms by which such securities may be convertible into Common Stock (see
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<PAGE> 13
"DESCRIPTION OF COMMON STOCK"), Preferred Shares (see "DESCRIPTION OF PREFERRED
SHARES") or Depositary Shares (see "DESCRIPTION OF DEPOSITARY SHARES") of the
Corporation, and, in the case of Subordinated Securities convertible into
Preferred Shares or Depositary Shares, the terms of such Preferred Shares or
Depositary Shares; (xi) whether such Debt Securities are to be issuable as
Bearer Securities and/or Registered Securities, and, if issuable as Bearer
Securities, the terms upon which any Bearer Securities may be exchanged for
Registered Securities; (xii) whether such Debt Securities are to be issued in
the form of one or more temporary or permanent Global Securities, and, if so,
the identity of the depositary for such Global Security or Securities; (xiii) if
a temporary global Debt Security is to be issued with respect to such series,
the extent to which, and the manner in which, any interest thereon payable on an
interest payment date prior to the issuance of a permanent Global Security or
definitive Bearer Securities will be credited to the accounts of the persons
entitled thereto on such interest payment date; (xiv) if a temporary Global
Security is to be issued with respect to such series, the terms upon which
interests in such temporary Global Security may be exchanged for interests in a
permanent Global Security or for definitive Debt Securities of the series, and
the terms upon which interests in a permanent Global Security, if any, may be
exchanged for definitive Debt Securities of the series; (xv) any additional
restrictive covenants included for the benefit of Holders of such Debt
Securities; (xvi) any additional Events of Default provided with respect to such
Debt Securities; (xvii) information with respect to book-entry procedures, if
any; (xviii) whether the Debt Securities will be repayable at the option of the
Holder; (xix) any other terms of the Debt Securities not inconsistent with the
provisions of the applicable Indenture; (xx) the right of the Corporation to
defease the Debt Securities or certain covenants under the Indentures; (xxi) the
Person or Persons who shall be the Security Registrar; and (xxii) the terms of
any securities being offered together with or separately from the Debt
Securities. Such Prospectus Supplement will also describe any special provisions
for the payment of additional amounts with respect to the Debt Securities,
certain United States federal income tax consequences and, any risk factors or
other special considerations applicable to such series of Debt Securities. If a
Debt Security is denominated in a foreign currency, such Debt Security may not
trade on a United States national securities exchange unless and until the
Commission has approved appropriate rule changes pursuant to the Securities Act
to accommodate the trading of such Debt Security.
Neither Indenture contains any restriction on the Corporation's ability to
enter into highly leveraged transactions or any provision affording special
protection to holders of Debt Securities in the event the Corporation engages in
a highly leveraged transaction. Further, neither Indenture contains any
provisions that would provide protection to holders of Debt Securities upon a
sudden and dramatic decline in the credit quality of the Corporation resulting
from a takeover, recapitalization or similar restructuring of the Corporation.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities other than Bearer Securities in temporary or
permanent global form will have interest coupons attached. (SECTION 201) Each
Indenture also provides that Bearer Securities or Registered Securities of a
series may be issuable in permanent global form. (SECTION 203) See "-- Permanent
Global Securities."
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of authorized denominations and of a
like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the Holder upon request confirmed in writing, and
subject to the terms of the applicable Indenture, Bearer Securities (with all
unmatured coupons, except as provided below, and all matured coupons in default)
of such series will be exchangeable into Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount,
tenor and terms. Bearer Securities surrendered in exchange for Registered
Securities between the close of business on a Regular Record Date or a Special
Record Date and the relevant date for payment of interest shall be surrendered
without the coupon relating to such date for payment of interest, and interest
will not be payable 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
12
<PAGE> 14
the terms of the applicable Indenture. Bearer Securities will not be issued in
exchange for Registered Securities. (SECTION 305) Each Bearer Security, other
than a temporary global Bearer Security, and each interest coupon will bear the
following legend: "Any United States Person who holds this obligation will be
subject to limitations under the United States federal income tax laws including
the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue
Code."
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Corporation for such purpose with respect to such series of
Debt Securities, without service charge and upon payment of any taxes and other
governmental charges. (SECTION 305) If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the Security Registrar) initially
designated by the Corporation with respect to any series of Debt Securities, the
Corporation may at any time rescind the designation of any such transfer agent
or approve a change in the location through which any such transfer agent (or
Security Registrar) acts, except that, if Debt Securities of a series are
issuable solely as Registered Securities, the Corporation will be required to
maintain a transfer agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Bearer Securities, the Corporation will
be required to maintain (in addition to the Security Registrar) a transfer agent
in a Place of Payment for such series located outside the United States. The
Corporation may at any time designate additional transfer agents with respect to
any series of Debt Securities. (SECTION 1002)
The Corporation shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any particular series to be redeemed for a
period of 15 days preceding the first publication of the relevant notice of
redemption, or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption, (ii) to register
the transfer of or exchange any Registered Security so selected for redemption
in whole or in part, except the unredeemed portion of any Registered Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of like tenor and terms of that series, provided that such Registered
Security shall be surrendered for redemption. (SECTION 305) Additional
information regarding restrictions on the issuance, exchange and transfer of and
special United States federal income tax considerations relating to Bearer
Securities will be set forth in the applicable Prospectus Supplement.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary Global Securities, without
interest coupons, to be deposited with a common depositary in London for Morgan
Guaranty Trust Corporation of New York, Brussels Office, as operator of the
Euroclear System ("Euroclear") and Cedel S.A. ("Cedel") for credit to designated
accounts. On and after the date determined as provided in any such temporary
Global Security and described in the applicable Prospectus Supplement, but
within a reasonable time, each such temporary Global Security will be
exchangeable for definitive Bearer Securities, definitive Registered Securities
or all or a portion of a permanent global Bearer Security, or any combination
thereof, as specified in such Prospectus Supplement. No definitive Bearer
Security or permanent global Bearer Security delivered in exchange for a portion
of a temporary Global Security shall be mailed or otherwise delivered to any
location in the United States in connection with such exchange.
Additional information regarding restrictions on and special United States
federal income tax consequences relating to temporary Global Securities will be
set forth in the Prospectus Supplement relating thereto.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such permanent Global Security
may exchange such interests for Debt Securities of such series and of like tenor
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<PAGE> 15
and principal amount of any authorized form and denomination. Principal of and
any premium and interest on a permanent Global Security will be payable in the
manner described in the Prospectus Supplement relating thereto.
PAYMENTS AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
payments of principal of and premium, if any, and interest, if any, on Bearer
Securities will be payable in the currency designated in the Prospectus
Supplement, subject to any applicable laws and regulations, at such paying
agencies outside the United States as the Corporation may appoint from time to
time. Unless otherwise provided in the Prospectus Supplement, such payments may
be made, at the option of the Holder, by a check in the designated currency or
by transfer to an account in the designated currency maintained by the payee
with a bank located outside the United States. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of interest on Bearer Securities on
any Interest Payment Date will be made only against surrender of the coupon
relating to such Interest Payment Date to a paying agent outside the United
States. (SECTION 1001) No payment with respect to any Bearer Security will be
made at any office or paying agency maintained by the Corporation in the United
States nor will any such payment be made by transfer to an account, or by mail
to an address, in the United States. Notwithstanding the foregoing, payments of
principal of and premium, if any, and interest, if any, on Bearer Securities
denominated and payable in U.S. dollars will be made in U.S. dollars at an
office or agency of, and designated by, the Corporation located in the United
States, if payment of the full amount thereof in U.S. dollars at all paying
agencies outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions, and the Trustee receives an
opinion of counsel that such payment within the United States is legal. (SECTION
1002) As used in the Prospectus, "United States" means the United States of
America (including the States and the District of Columbia) and its possessions.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and premium, if any, and interest, if any, on a Registered
Security will be payable in the currency designated in the Prospectus
Supplement, and interest will be payable at the office of such paying agent or
paying agents as the Corporation may appoint from time to time, except that, at
the option of the Corporation, payment of any interest may be made by a check in
such currency mailed to the Holder at such Holder's registered address or by
wire transfer to an account in such currency designated by such Holder in
writing not less than ten days prior to the date of such payment. Unless
otherwise indicated in the applicable Prospectus Supplement, payment of any
installment of interest on a Registered Security will be made to the Person in
whose name such Registered Security is registered at the close of business on
the Regular Record Date for such payments. (SECTION 307) Unless otherwise
indicated in the applicable Prospectus Supplement, principal payable at maturity
will be paid to the registered holder upon surrender of the Registered Security
at the office of a duly appointed paying agent.
The paying agents outside the United States initially appointed by the
Corporation for a series of Debt Securities will be named in the applicable
Prospectus Supplement. The Corporation may terminate the appointment of any of
the paying agents from time to time, except that the Corporation will maintain
at least one paying agent outside the United States so long as any Bearer
Securities are outstanding where Bearer Securities may be presented for payment
and may be surrendered for exchange, provided that so long as any series of Debt
Securities is listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Corporation will maintain a paying agent in London or Luxembourg or any other
required city located outside the United States, as the case may be, for such
series of Debt Securities. (SECTION 1002)
All moneys paid by the Corporation to a paying agent for the payment of
principal of or premium, if any, or interest, if any, on any Debt Security that
remains unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will, at request of the Corporation,
be repaid to the Corporation, and the Holder of such Debt Security or any coupon
appertaining thereto will thereafter look only to the Corporation for payment
thereof. (SECTION 1003)
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<PAGE> 16
COVENANTS CONTAINED IN INDENTURES
The Senior Indenture provides that the Corporation will not, and will not
permit any Subsidiary to, sell or otherwise dispose of, or permit any "Principal
Subsidiary Bank" (defined as any Subsidiary Bank having total assets in excess
of 10% of the total consolidated assets of the Corporation and its Subsidiaries)
to issue (except to the Corporation), shares of "Capital Stock" (defined as
outstanding shares of stock of any class), or securities convertible into
Capital Stock, of any Principal Subsidiary Bank, or any Subsidiary owning,
directly or indirectly, in whole or in part, Capital Stock of a Principal
Subsidiary Bank, with the following exceptions: (i) sales of directors'
qualifying shares; (ii) sales or other dispositions for fair market value if,
after giving effect to such disposition and to the issuance of any shares
issuable upon conversion or exchange of securities convertible or exchangeable
into Capital Stock, the Corporation would own, directly or indirectly, through
Subsidiaries not less than 80% of the shares of each class of Capital Stock of
such Principal Subsidiary Bank; (iii) sales or other dispositions or issuances
made in compliance with an order or direction of a court or regulatory authority
of competent jurisdiction; or (iv) sales of Capital Stock by any Principal
Subsidiary Bank to its stockholders where the sale does not reduce the
percentage of shares of the same class owned by the Corporation. (SECTION 1005
OF THE SENIOR INDENTURE) At the date hereof, the only Subsidiary Bank which is a
Principal Subsidiary Bank is the Bank. Notwithstanding the foregoing, any
Principal Subsidiary Bank may be merged into or consolidated with another
banking institution organized under the laws of the United States, any State
thereof or the District of Columbia, if after giving effect to such merger or
consolidation, the Corporation or any Wholly-Owned Subsidiary owns at least 80%
of the Capital Stock of such other banking institution then issued and
outstanding free and clear of any security interest and if, immediately after
giving effect thereto, no default or Event of Default shall have happened and be
continuing.
The Subordinated Indenture does not contain the foregoing covenant.
The Corporation is not restricted by the Indentures from incurring,
assuming or becoming liable for any type of debt or other obligations, from
creating liens on its property for any purpose or from paying dividends or
making distributions on its Capital Stock or purchasing or redeeming its Capital
Stock. The Indentures do not require the maintenance of any financial ratios or
specified levels of net worth or liquidity. In addition, the Indentures do not
contain any provision which would require the Corporation to repurchase or
redeem or otherwise modify the terms of any of its Debt Securities upon a change
in control or other events involving the Corporation which may adversely affect
the creditworthiness of the Debt Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Corporation may not consolidate with or merge with or into, or transfer
or lease its assets substantially as an entirety to, any Person unless (i) the
successor Person is a corporation organized and validly existing under the laws
of a domestic jurisdiction and expressly assumes the Corporation's obligations
on the Debt Securities and under the applicable Indenture; and (ii) after giving
effect to the transaction no Event of Default, and no event which, after notice
or lapse of time, or both, would become an Event of Default, shall have occurred
and be continuing. (SECTION 801)
MODIFICATION AND WAIVER
Except as to certain modifications and amendments not adverse to Holders of
Debt Securities, modifications and amendments of and waivers of compliance with
provisions of each Indenture may be made only with the consent of the Holders of
not less than a majority in principal amount of the Outstanding Debt Securities
of each series thereunder affected by such modification, amendment or waiver;
provided that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security or coupon affected thereby, (i) change
the Stated Maturity of the principal or any installment of principal or any
installment of interest, if any; (ii) reduce the amount of principal or interest
thereon, or any premium payable upon redemption or repayment thereof or in the
case of an Original Issue Discount Security the amount of principal payable upon
acceleration of the Maturity thereof; (iii) change the place of payment or the
currency in which principal or interest is payable, if any; (iv) impair the
right to institute suit for the enforcement of any payment of the principal,
premium, if any, and interest, if any, or adversely affect the right
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<PAGE> 17
of repayment, if any, at the option of the Holder; (v) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of the applicable
Indenture or for waiver of compliance with certain provisions of the applicable
Indenture or for waiver of certain defaults; (vi) reduce the requirements
contained in the applicable Indenture for quorum or voting; (vii) in the case of
Subordinated Securities convertible into Common Stock, impair any right to
convert such Subordinated Securities; or (viii) modify any of the above
provisions. (SECTION 902)
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series issued thereunder if Debt Securities of that series
are issuable in whole or in part as Bearer Securities. (SECTION 1401 OF THE
SENIOR INDENTURE, SECTION 1601 OF THE SUBORDINATED INDENTURE) A meeting may be
called at any time by the Trustee for such Debt Securities, or upon the request
of the Corporation or the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of such series, in any such case upon notice given
in accordance with the Indenture with respect thereto. (SECTION 1402 OF THE
SENIOR INDENTURE, SECTION 1602 OF THE SUBORDINATED INDENTURE) Except as limited
by the proviso in the preceding paragraph, any resolution presented at a meeting
or adjourned meeting at which a quorum is present may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series; provided, however, that, except as
limited by the proviso in the preceding paragraph, any resolution with respect
to any consent or waiver which may be given by the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of a series
issued under an Indenture may be adopted at a meeting or an adjourned meeting at
which a quorum is present only by the affirmative vote of the Holders of a
majority in principal amount of such Outstanding Debt Securities of that series;
and provided, further, that, except as limited by the proviso in the preceding
paragraph, any resolution with respect to any demand, consent, waiver or other
action which 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 Debt Securities of a series issued under an Indenture may be adopted
at a meeting or adjourned meeting at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Debt Securities of that series. (SECTION 1404 OF THE SENIOR
INDENTURE, SECTION 1604 OF THE SUBORDINATED INDENTURE)
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the applicable Indenture
with respect thereto will be binding on all Holders of Debt Securities of that
series and the related coupons issued under that Indenture. The quorum at any
meeting of Holders of a series of Debt Securities called to adopt a resolution,
and at any reconvened meeting, will be persons holding or representing a
majority in principal amount of the Outstanding Debt 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 may be given by the Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of a
series, the Persons holding or representing a majority in principal amount of
the Outstanding Debt Securities of such series issued under that Indenture will
constitute a quorum. (SECTION 1404 OF THE SENIOR INDENTURE, SECTION 1604 OF THE
SUBORDINATED INDENTURE)
EVENTS OF DEFAULT
Unless otherwise provided in the applicable Prospectus Supplement, any
series of Senior Securities issued under the Senior Indenture will provide that
the following shall constitute Events of Default with respect to such series:
(i) default in payment of principal of or premium, if any, on any Senior
Security of such series when due; (ii) default for 30 days in payment of
interest, if any, on any Senior Security of such series or related coupon, if
any, when due; (iii) default in the deposit of any sinking fund payment on any
Senior Security of such series when due; (iv) default in the performance of
certain covenants contained in such Indenture; (v) default in the performance of
any other covenant in such Indenture, continued for 30 days after written notice
thereof by the Trustee thereunder or the Holders of at least 25% in principal
amount of the Outstanding Senior Securities of such series issued under that
Indenture; and (vi) certain events of bankruptcy, insolvency or reorganization
of the Corporation. (SECTION 501 OF THE SENIOR INDENTURE)
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Unless otherwise provided in the applicable Prospectus Supplement, any
series of Subordinated Securities issued under the Subordinated Indenture will
provide that the only Event of Default will be certain events of bankruptcy of
the Corporation. (SECTION 501 OF THE SUBORDINATED INDENTURE) Unless specifically
stated in the applicable Prospectus Supplement for a particular series of
Subordinated Securities, there is no right of acceleration of the payment of
principal of the Subordinated Securities upon a default in the payment of
principal, premium, if any, or interest, if any, or in the performance of any
covenant or agreement in the Subordinated Securities or Subordinated Indenture.
In the event of a default in the payment of principal, premium, if any, or
interest, if any, default of any sinking fund payment; or the performance of any
covenant or agreement in the Subordinated Securities or Subordinated Indenture,
the Trustee, subject to certain limitations and conditions, may institute
judicial proceedings to enforce payment of such principal, premium, if any, or
interest, if any, or to obtain the performance of such covenant or agreement or
any other proper remedy. (SECTION 503 OF THE SUBORDINATED INDENTURE)
The Corporation is required to file with each Trustee annually an Officers'
Certificate concerning the absence of certain defaults under the terms of the
Indentures. (SECTION 1007 OF THE SENIOR INDENTURE, SECTION 1004 OF THE
SUBORDINATED INDENTURE) Each Indenture provides that if an Event of Default
specified therein shall occur and be continuing, either the Trustee thereunder
or the Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of such series issued under that Indenture may declare the principal
of all such Debt Securities (or in the case of Original Issue Discount
Securities, such portion of the principal amount thereof as may be specified in
the terms thereof) to be due and payable. (SECTION 502) In certain cases, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series may, on behalf of the Holders of all Debt Securities of any such
series and any related coupons, waive any past default or Event of Default
except a default (i) in payment of the principal of or premium, if any, or
interest, if any, on any of the Debt Securities of such series and (ii) in
respect of a covenant or provision of the Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Debt Security of
such series or coupon affected. (SECTION 513)
Each Indenture contains a provision entitling the Trustee thereunder,
subject to the duty of such Trustee during default to act with the required
standard of care, to be indemnified by the Holders of the Debt Securities of any
series thereunder or any related coupons before proceeding to exercise any right
or power under such Indenture with respect to such series at the request of such
Holders. (SECTION 603) Each Indenture provides that no Holder of any Debt
Securities of any series thereunder or any related coupons may institute any
proceeding, judicial or otherwise, to enforce such Indenture except in the case
where the Trustee thereunder fails to act for 60 days after it receives written
notice of default and the Trustee receives a request to enforce such Indenture
by the Holders of not less than 25% in aggregate principal amount of the
Outstanding Debt Securities of such series and an offer of reasonable indemnity.
(SECTION 507) This provision will not prevent any Holder of Debt Securities or
any related coupons from enforcing payment of the principal thereof and premium,
if any, and interest, if any, thereon at the respective due dates thereof.
(SECTION 508) The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series issued under an Indenture may direct
the time, method and place of conducting any proceedings for any remedy
available to the Trustee for such Debt Securities or exercising any trust or
power conferred on it with respect to the Debt Securities of such series.
However, such Trustee may refuse to follow any direction that conflicts with law
or the Indenture under which it serves or which would be unjustly prejudicial to
Holders not joining therein. (SECTION 512)
The Subordinated Indenture provides that the Trustee thereunder will give
to the Holders of Debt Securities notice of a default if not cured or waived,
but, except in the case of a default in the payment of principal of or premium,
if any, or interest, if any, on any Debt Securities of such series or any
related coupons or in the payment of any sinking fund installment with respect
to Debt Securities of such series or in the exchange of Capital Securities for
Debt Securities of such series, the Trustee for such Debt Securities shall be
protected in withholding such notice if it determines in good faith that the
withholding of such notice is in the interest of the Holders of such Debt
Securities. (SECTION 602 OF THE SUBORDINATED INDENTURE)
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The Senior Indenture provides that the Trustee thereunder will give to the
Holders of Debt Securities notice of a default, however, in the case of default
in the performance, or breach, of any covenant or warranty of the Company under
the Senior Indenture, and continuance of such default or breach for 30 days
after notice of default is given to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series, requiring it to be remedied, the
Trustee for such Debt Securities will not give notice to Holders of such Debt
Securities until at least 30 days after the occurrence of such default. (SECTION
602 OF THE SENIOR INDENTURE)
DEFEASANCE AND DISCHARGE
The Corporation may be discharged from any and all obligations in respect
of the Debt Securities of any series (except for certain obligations relating to
temporary Debt Securities and exchange of Debt Securities, registration of
transfer or exchange of Debt Securities of such series, replacement of stolen,
lost or mutilated Debt Securities of such series, maintenance of paying
agencies, obligations to hold monies for payment in trust and payment of
additional amounts, if any, required in consequence of United States withholding
taxes imposed on payments to non-U.S. persons) upon the deposit with the
Trustee, in trust, of money and/or, to the extent such Debt Securities are
denominated and payable in U.S. dollars only, Eligible Instruments which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide money in an amount sufficient to pay the principal of
(and premium, if any), each installment of interest on, and any mandatory
sinking fund or analogous payments on, the Debt Securities of such series on the
Stated Maturity of such payments in accordance with the terms of the applicable
Indenture and the Debt Securities of such series. Such a trust may be
established only if, among other things, (a) the Corporation has delivered to
the Trustee an Opinion of Counsel to the effect that (i) the Corporation has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of the applicable Indenture there has been a
change in applicable federal income tax law, in either case, to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of
Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge, and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; and (b) the Debt Securities
of such series, if then listed on any domestic or foreign securities exchange,
will not be delisted as a result of such deposit, defeasance and discharge.
(SECTION 403) In the event of any such defeasance and discharge of Debt
Securities of such series, Holders of Debt Securities of such series would be
able to look only to such trust fund for payment of principal of and any premium
and any interest on their Debt Securities until Maturity.
The Corporation may terminate certain of its obligations under each
Indenture with respect to the Debt Securities of any series thereunder,
including its obligations to comply with the covenants described under " --
Covenants Contained in Indentures" above, with respect to such Debt Securities,
on the terms and subject to the conditions contained in such Indentures, by
depositing in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in U.S. dollars only, Eligible
Instruments which, through the payment of principal and interest in accordance
with their terms, will provide money in an amount sufficient to pay the
principal and premium, if any, and interest, if any, on such Debt Securities,
and any mandatory sinking fund, repayment or analogous payments thereon, on the
scheduled due dates therefor. Such deposit and termination is conditioned, among
other things, upon the Corporation's delivery of an opinion of counsel that the
Holders of such Debt Securities will have no federal income tax consequences as
a result of such deposit and termination. Such termination will not relieve the
Corporation of its obligation to pay when due the principal of or interest on
such Debt Securities if such Debt Securities of such series are not paid from
the money or Eligible Instruments held by the Trustee for the payment thereof.
(SECTION 1501 OF THE SENIOR INDENTURE, SECTION 1701 OF THE SUBORDINATED
INDENTURE) The applicable Prospectus Supplement may further describe the
provisions, if any, permitting or restricting such defeasance with respect to
the Debt Securities of a particular series. In the event the Corporation
exercises its option to omit compliance with the covenants described under
" -- Covenants Contained in Indentures" above with respect to the Debt
Securities of any series as described above and the Debt Securities of such
series are declared due and payable because of the occurrence of any Event of
Default, then the amount of money and
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Eligible Instruments on deposit with the Trustee will be sufficient to pay
amounts due on the Debt Securities of such series at the time of their Stated
Maturity but may not be sufficient to pay amounts due on the Debt Securities of
such series at the time of the acceleration resulting from such Event of
Default. The Corporation shall in any event remain liable for such payments as
provided in the applicable Indenture.
SUBORDINATION
The Subordinated Securities shall be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Debt (as defined below) of the Corporation. In the event that the Corporation
shall default in the payment of any principal, premium, if any, or interest, if
any, on any Senior Debt when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made for
principal, premium, if any, or interest, if any, on the Subordinated Securities,
or in respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Subordinated Securities. (SECTION 1801 OF THE
SUBORDINATED INDENTURE) "Senior Debt" means any obligation of the Corporation to
its creditors, whether now outstanding or subsequently incurred, other than (i)
any obligation as to which it is provided that such obligation is not Senior
Debt and (ii) the Subordinated Securities. (SECTION 101 OF THE SUBORDINATED
INDENTURE) As of September 30, 1996, the Corporation had no Senior Debt
outstanding.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding-up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of creditors or (iv) any
other marshalling of the assets of the Corporation, all Senior Debt (including
any interest thereon accruing after the commencement of any such proceedings)
shall first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made on account of the principal of or
interest on the Subordinated Securities. In such event, any payment or
distribution on account of the principal of or interest on the Subordinated
Securities, whether in cash, securities or other property (other than securities
of the Corporation or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the
Subordinated Securities, to the payment of all Senior Debt at the time
outstanding, and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Subordinated Securities shall be paid or delivered directly to the holders of
Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full. (SECTION
1801 OF THE SUBORDINATED INDENTURE)
In the event of any such proceeding, after payment in full of all sums
owing with respect to Senior Debt, the Holders of Subordinated Securities,
together with the holders of any obligations of the Corporation ranking on a
parity with the Subordinated Securities, shall be entitled to be repaid from the
remaining assets of the Corporation the amounts at the time due and owing on
account of unpaid principal, premium, if any, and interest, if any, on the
Subordinated Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or obligations of the Corporation ranking junior to the
Subordinated Securities and such other obligations. If any payment or
distribution on account of the principal of or interest on the Subordinated
Securities of any character or any security, whether in cash, securities or
other property (other than securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Subordinated Securities, to the payment of all
Senior Debt at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment) shall be received
by any Holder of any Subordinated Securities in contravention of any of the
terms of the Subordinated Indenture and before all
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the Senior Debt shall have been paid in full, such payment or distribution or
security shall be received in trust for the benefit of, and shall be paid over
or delivered and transferred to, the holders of the Senior Debt at the time
outstanding in accordance with the priorities then existing among such holders
for application to the payment of all Senior Debt remaining unpaid to the extent
necessary to pay all such Senior Debt in full. (SECTION 1801 OF THE SUBORDINATED
INDENTURE) By reason of such subordination, in the event of the insolvency of
the Corporation, holders of Senior Debt may receive more, ratably, and holders
of the Subordinated Securities having a claim pursuant to such securities may
receive less, ratably, than the other creditors of the Corporation. Such
subordination will not prevent the occurrence of any Event of Default in respect
of the Subordinated Securities.
CONVERSION OF SUBORDINATED CONVERTIBLE SECURITIES
The Holders of Subordinated Securities of a specified series that are
convertible into Common Stock, Preferred Shares or Depositary Shares of the
Corporation ("Subordinated Convertible Securities") will be entitled at certain
times specified in the applicable Prospectus Supplement, subject to prior
redemption, repayment or repurchase, to convert any Subordinated Convertible
Securities of such series (in denominations set forth in the applicable
Prospectus Supplement) into Common Stock, Preferred Shares or Depositary Shares,
as the case may be, at the conversion price set forth in the applicable
Prospectus Supplement, subject to adjustment as described below and in the
applicable Prospectus Supplement. Except as described below, no adjustment will
be made on conversion of any Subordinated Convertible Securities for interest
accrued thereon or for dividends on any Common Stock, Preferred Shares or
Depositary Shares issued. (SECTION 1903 OF THE SUBORDINATED INDENTURE) If any
Subordinated Convertible Securities (not called for redemption or submitted for
repayment) are converted between a Regular Record Date for the payment of
interest and the next succeeding Interest Payment Date, such Subordinated
Convertible Securities must be accompanied by funds equal to the interest
payable on such succeeding Interest Payment Date on the principal amount so
converted. (SECTION 1903 OF THE SUBORDINATED INDENTURE) The Corporation is not
required to issue fractional shares of Common Stock upon conversion of
Subordinated Convertible Securities that are convertible into Common Stock and,
in lieu thereof, will pay a cash adjustment based upon the Closing Price (as
defined in the Subordinated Indenture) of the Common Stock on the last business
day prior to the date of conversion. (SECTION 1904 OF THE SUBORDINATED
INDENTURE) In the case of Subordinated Convertible Securities called for
redemption or submitted for repayment, conversion rights will expire at the
close of business on the redemption date or repayment date, as the case may be.
(SECTION 1902 OF THE SUBORDINATED INDENTURE)
Unless otherwise indicated in the applicable Prospectus Supplement, the
conversion price for Subordinated Convertible Securities that are convertible
into Common Stock is subject to adjustment under formulas set forth in the
Subordinated Indenture upon the occurrence of certain events, including the
issuance of the Corporation's capital stock as a dividend or distribution on the
Common Stock; subdivisions and combinations of the Common Stock; the issuance to
all holders of Common Stock of certain rights or warrants entitling them to
subscribe for or purchase Common Stock within 45 days after the date fixed for
the determination of the stockholders entitled to receive such rights or
warrants, at less than the current market price (as defined in the Subordinated
Indenture); and the distribution to all holders of Common Stock of evidences of
indebtedness or assets of the Corporation (excluding certain cash dividends and
distributions described in the next paragraph) or rights or warrants (excluding
those referred to above). (SECTION 1906 OF THE SUBORDINATED INDENTURE) In the
event that the Corporation shall distribute any rights or warrants to acquire
capital stock ("Capital Stock Rights") pursuant to which separate certificates
representing such Capital Stock Rights will be distributed subsequent to the
initial distribution of such Capital Stock Rights (whether or not such
distribution shall have occurred prior to the date of the issuance of a series
of Subordinated Convertible Securities), such subsequent distribution shall be
deemed to be the distribution of such Capital Stock Rights; provided that the
Corporation may, in lieu of making any adjustment in the conversion price upon a
distribution of separate certificates representing such Capital Stock Rights,
make proper provision so that each Holder of such a Subordinated Convertible
Security who converts such Subordinated Convertible Security (or any portion
thereof) (a) before the record date for such distribution of separate
certificates shall be entitled to receive upon such conversion shares of Common
Stock issued with
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Capital Stock Rights and (b) after such record date and prior to the expiration,
redemption or termination of such Capital Stock Rights shall be entitled to
receive upon such conversion, in addition to the shares of Common Stock issuable
upon such conversion, the same number of such Capital Stock Rights as would a
holder of the number of shares of Common Stock that such Subordinated
Convertible Security so converted would have entitled the holder thereof to
acquire in accordance with the terms and provisions applicable to the Capital
Stock Rights if such Subordinated Convertible Security were converted
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Corporation or any majority owned subsidiary
shall not be deemed outstanding for the purpose of any adjustment. (SECTION 1906
OF THE SUBORDINATED INDENTURE)
No adjustment in the conversion price of Subordinated Convertible
Securities that are convertible into Common Stock will be made for regular
quarterly or other periodic or recurring cash dividends or distributions or for
cash dividends or distributions to the extent paid from retained earnings. No
adjustment in the conversion price of Subordinated Convertible Securities that
are convertible into Common Stock will be required unless such adjustment would
require a change of at least 1% in the conversion price then in effect, provided
that any such adjustment not so made will be carried forward and taken into
account in any subsequent adjustment; and provided, further, that any such
adjustment not so made shall be made no later than three years after the
occurrence of the event requiring such adjustment to be made or carried forward.
Notwithstanding any of the foregoing, the issuance of Common Stock under the
Corporation's Dividend Reinvestment and Stock Purchase Plan shall not require an
adjustment to the conversion price of Subordinated Convertible Securities that
are convertible into Common Stock. The Corporation reserves the right to make
such reductions in the conversion price in addition to those required in the
foregoing provisions as the Corporation, in its discretion, shall determine to
be advisable in order that certain stock-related distributions thereafter made
by the Corporation to its stockholders shall not be taxable. (SECTION 1906 OF
THE SUBORDINATED INDENTURE) Except as stated above, the conversion price will
not be adjusted for the issuance of Common Stock or any securities convertible
into or exchangeable for Common Stock, or securities carrying the right to
purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case, as a result of which
holders of Common Stock shall be entitled to receive stock, securities, other
property or assets (including cash) with respect to, or in exchange for, such
Common Stock, the Holders of the Subordinated Convertible Securities then
outstanding that are convertible into Common Stock will be entitled thereafter
to convert such Subordinated Convertible Securities into the kind and amount of
shares of stock and other securities or property which they would have received
upon such reclassification, change, consolidation, merger, sale or conveyance
had such Subordinated Convertible Securities been converted into Common Stock
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance. (SECTION 1907 OF THE SUBORDINATED INDENTURE)
In the event of a taxable distribution to holders of Common Stock (or other
transaction) which results in any adjustment of the conversion price of
Subordinated Convertible Securities that are convertible into Common Stock, the
Holders of such Subordinated Convertible Securities may, in certain
circumstances, be deemed to have received a distribution subject to United
States income tax as a dividend; in certain other circumstances, the absence of
such an adjustment may result in a taxable dividend to the holders of Common
Stock or such Subordinated Convertible Securities.
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DESCRIPTION OF PREFERRED SHARES
The following description of the terms of the Preferred Shares sets forth
certain general terms and provisions of the Preferred Shares to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Shares offered by any Prospectus Supplement will be described in the
Prospectus Supplement relating to such series of the Preferred Shares. If so
indicated in the Prospectus Supplement, the terms of any such series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Shares set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Certificate of Designations relating to each series of the
Preferred Shares.
GENERAL
Pursuant to the Corporation's Articles of Incorporation, as amended (the
"Articles"), the Board of Directors of the Corporation has the authority,
without further stockholder action, to issue from time to time a maximum of
1,000,000 shares of preferred stock, without par value ("Preferred Stock"),
including shares issued or reserved for issuance, in one or more series and with
such terms and at such times and for such consideration as the Board of
Directors of the Corporation may determine. The terms and conditions of the
Preferred Stock are governed by the laws of the state of Ohio as well as by the
Corporation's Articles, and the Corporation's Code of Regulations. The authority
of the Board of Directors of the Corporation includes the determination or
fixing of the following with respect to shares of any series thereof: (i) the
number of shares and designation or title thereof; (ii) rights as to dividends;
(iii) whether and upon what terms the shares are to be redeemable; (iv) the
rights of the holders upon the dissolution, or upon the distribution of assets,
of the Corporation; (v) whether and upon what terms the shares shall have a
purchase, retirement or sinking fund; (vi) whether and upon what terms the
shares are to be convertible; (vii) the voting rights, if any, which shall
apply; and (viii) any other preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions of such
series. At September 30, 1996, no shares of Preferred Stock were outstanding.
As described under "DESCRIPTION OF DEPOSITARY SHARES," the Corporation may,
at its option, elect to offer Depositary Shares evidenced by depositary receipts
("Depositary Receipts"), each representing a fractional interest (to be
specified in the Prospectus Supplement relating to the particular series of the
Preferred Shares) in a share of the particular series of the Preferred Shares
issued and deposited with a Depositary (as defined).
Under interpretations adopted by the Federal Reserve Board, if the holders
of any series of the Preferred Shares become entitled to vote for the election
of directors because dividends on such series are in arrears as described under
"-- Voting Rights" below, such series may then be deemed a "class of voting
securities" and a holder of 25% or more of such series (or a holder of 5% or
more if it otherwise exercises a "controlling influence" over the Corporation)
may then be subject to regulation as a bank holding company in accordance with
the BHCA. In addition, at such time as such series is deemed a class of voting
securities, any other bank holding company may be required to obtain the prior
approval of the Federal Reserve Board to acquire 5% or more of such series, and
any person other than a bank holding company may be required to obtain the prior
approval of the Federal Reserve Board to acquire 10% or more of such series.
The Preferred Shares shall have the dividend, liquidation, redemption,
voting and conversion rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of the Preferred Shares.
For information concerning legal limitations on the ability of the Bank to
supply funds to the Corporation, see "CERTAIN REGULATORY MATTERS." Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Shares offered thereby for specific terms, including (i) the title,
stated value and liquidation preference of such Preferred Shares and the number
of Preferred Shares offered; (ii) the initial public offering price at which
such Preferred Shares will be issued; (iii) the dividend rate or rates (or
method of calculation), the dividend periods, the dates on which dividends shall
be payable, and whether such dividends shall be cumulative or noncumulative and,
if cumulative, the dates from which dividends shall commence to cumulate; (iv)
any repurchase, redemption or sinking fund provisions;
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(v) any conversion provisions; (vi) whether the Corporation has elected to offer
Depositary Shares as described under "DESCRIPTION OF DEPOSITARY SHARES;" and
(vii) any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
The Preferred Shares will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of the Preferred Shares, each series of the Preferred Shares will rank on
a parity in all respects with each other series of the Preferred Shares and will
rank senior to the Corporation's Series A Preferred Stock described below. The
Preferred Shares will have no preemptive rights to subscribe for any additional
securities which may be issued by the Corporation. Unless otherwise specified in
the applicable Prospectus Supplement, the Bank will be the transfer agent and
registrar for the Preferred Shares and any Depositary Shares.
Unless otherwise specified in the applicable Prospectus Supplement, the
Preferred Shares will rank on a parity in all respects with the outstanding
Preferred Stock of the Corporation and shall rank senior to the Series A
Preferred Stock as to the payment of dividends and the distribution of assets.
The Common Stock of the Corporation, including the Common Stock that may be
issued upon conversion of the Preferred Shares or in exchange for, or upon
conversion of, Subordinated Securities, will be subject to any prior rights of
the Preferred Stock then outstanding. Therefore, the rights of any Preferred
Stock that may be subsequently issued, may limit the rights of the holders of
the Preferred Shares and Common Stock of the Corporation.
DIVIDENDS
The holders of the Preferred Shares of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Corporation
or a duly authorized committee thereof, out of funds legally available therefor,
cash dividends at such rates and on such dates as will be set forth in the
Prospectus Supplement relating to such series. Such rates may be fixed or
variable or both. If variable, the formula used for determining the dividend
rate for each dividend period will be set forth in the Prospectus Supplement.
Dividends will be payable to the holders of record as they appear on the stock
books of the Corporation on such record dates as will be fixed by the Board of
Directors of the Corporation or a duly authorized committee thereof.
Dividends on any series of the Preferred Shares may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If the Board
of Directors of the Corporation fails to declare a dividend payable on a
dividend payment date on any series of the Preferred Shares for which dividends
are noncumulative ("Noncumulative Preferred Shares"), then the holders of such
series of the Preferred Shares will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Corporation will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such series are declared payable on any future
dividend payment dates.
No full dividends will be declared or paid or set apart for payment on any
stock of the Corporation ranking, as to dividends, on a parity with or junior to
the Preferred Shares for any period unless full dividends on the Preferred
Shares of each series (including any accumulated dividends) have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment. When dividends are not paid in full
upon any series of Preferred Shares and any Preferred Stock ranking on a parity
as to dividends with the Preferred Shares, all dividends declared or made upon
Preferred Shares of each series and any Preferred Stock ranking on a parity as
to dividends with the Preferred Shares shall be declared pro rata so that the
amount of dividends declared per share on Preferred Shares of each series and
such Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share (which, in the case of Noncumulative Preferred
Shares, shall not include any accumulation in respect of unpaid dividends for
prior dividend periods) on shares of each series of the Preferred Shares and
such Preferred Stock bear to each other. Except as provided in the preceding
sentence, no dividend (other than dividends or distributions paid in shares of,
or options, warrants or rights to subscribe for or purchase shares of, Common
Stock or any other stock of the Corporation ranking junior to the Preferred
Shares as to dividends and upon liquidation) shall be declared or paid or set
aside for payment or other distribution declared or made upon the Common Stock
or any other stock of the Corporation ranking junior to or on a parity with the
Preferred Shares as to dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the
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Corporation ranking junior to or on a parity with the Preferred Shares as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Corporation (except
by conversion into or exchange for stock of the Corporation ranking junior to
the Preferred Shares as to dividends and upon liquidation) unless, in each case,
the full dividends on each series of the Preferred Shares shall have been paid
or declared and set aside for payment. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on any
series of the Preferred Shares which may be in arrears.
REDEMPTION
A series of the Preferred Shares may be redeemable, in whole or in part, at
the option of the Corporation, and may be subject to mandatory redemption
pursuant to a sinking fund or otherwise, in each case, upon terms, at the times
and at the redemption prices set forth in the Prospectus Supplement relating to
such series. Preferred Shares redeemed by the Corporation will be restored to
the status of authorized but unissued shares of Preferred Stock, as the case may
be.
The Prospectus Supplement relating to a series of the Preferred Shares
which is subject to mandatory redemption will specify the number of shares of
such series of the Preferred Shares which shall be redeemed by the Corporation
in each year commencing after a date to be specified, at a redemption price per
share to be specified, together with an amount equal to all accrued and unpaid
dividends thereon to the date of redemption. The redemption price may be payable
in cash or other property, as specified in the Prospectus Supplement relating to
such series of the Preferred Shares. If the redemption price is payable only
from the net proceeds of the issuance of capital stock of the Corporation, the
terms of such series may provide that, if no such capital stock shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, the applicable shares of
such series of the Preferred Shares shall automatically and mandatorily be
converted into shares of the applicable capital stock of the Corporation
pursuant to conversion provisions specified in the Prospectus Supplement
relating to such series of the Preferred Shares.
If fewer than all of the outstanding shares of any series of the Preferred
Shares are to be redeemed, the number of Preferred Shares to be redeemed will be
determined by the Board of Directors of the Corporation and such Preferred
Shares shall be redeemed pro rata from the holders of record of such Preferred
Shares in proportion to the number of such Preferred Shares held by such holders
(with adjustments to avoid redemption of fractional shares).
Notwithstanding the foregoing, if any dividends, including any
accumulation, on Preferred Shares of any series are in arrears, no Preferred
Shares of such series shall be redeemed unless all outstanding Preferred Shares
of such series are simultaneously redeemed, and the Corporation shall not
purchase or otherwise acquire any Preferred Shares of such series; provided,
however, that the foregoing shall not prevent the purchase or acquisition of
Preferred Shares of such series pursuant to a purchase or exchange offer,
provided that such offer is made on the same terms to all holders of such series
of the Preferred Shares.
Notice of redemption shall be given by mailing the same to each record
holder of the shares to be redeemed, not less than 30 nor more than 60 days
prior to the date fixed for redemption thereof, to the respective addresses of
such holders as the same shall appear on the stock books of the Corporation.
Each such notice shall state (i) the redemption date; (ii) the number of
Preferred Shares and series of the Preferred Shares to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such Preferred
Shares are to be surrendered for payment of the redemption price; (v) that
dividends on the Preferred Shares to be redeemed will cease to accrue on such
redemption date; and (vi) the date upon which the holder's conversion rights as
to such Preferred Shares, if any, shall terminate. If fewer than all Preferred
Shares of any series of the Preferred Shares held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the number or
percentage of Preferred Shares to be redeemed from such holder.
If notice of redemption has been given, from and after the redemption date
for the shares of the series of the Preferred Shares called for redemption
(unless default shall be made by the Corporation in providing
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money for the payment of the redemption price of the Preferred Shares so called
for redemption), dividends on the Preferred Shares so called for redemption
shall cease to accrue and such Preferred Shares shall no longer be deemed to be
outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive the redemption price) shall cease. Upon
surrender in accordance with such notice of the certificates representing any
Preferred Shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors of the Corporation shall so require and the notice shall so
state), the redemption price set forth above shall be paid out of funds provided
by the Corporation. If fewer than all of the Preferred Shares represented by any
such certificate are redeemed, a new certificate shall be issued representing
the unredeemed Preferred Shares without cost to the holder thereof.
In the event that a redemption described above is deemed to be a "tender
offer" within the meaning of Rule 14e-1 under the Exchange Act, the Company will
comply with all applicable provisions of the Exchange Act.
CONVERSION
The Prospectus Supplement relating to a series of the Preferred Shares
which is convertible will state the terms on which Preferred Shares of that
series are convertible into shares of Common Stock or a series of Preferred
Stock.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of shares of each series of the
Preferred Shares and any Preferred Stock ranking on a parity with such series of
Preferred Shares upon liquidation will be entitled to receive out of the assets
of the Corporation available for distribution to stockholders, before any
distribution of assets is made to holders of the Common Stock or any other class
or series of stock of the Corporation ranking junior to such series of the
Preferred Shares upon liquidation, liquidation distributions in the amount set
forth in the Prospectus Supplement relating to such series of the Preferred
Shares plus an amount equal to the sum of all accrued and unpaid dividends
(whether or not earned or declared) for the then current dividend period and, if
such series of the Preferred Shares is cumulative, for all dividend periods
prior thereto. Neither the sale of all or substantially all of the property and
assets of the Corporation, nor the merger or consolidation of the Corporation
into or with any other corporation nor the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation
available for distribution to the holders of the Preferred Shares of any series
and any other Preferred Stock of the Corporation ranking as to any such
distribution on a parity with such series of the Preferred Shares shall be
insufficient to pay in full all amounts to which such holders are entitled, no
such distribution shall be made on account of any shares of any other series of
the Preferred Shares or Preferred Stock of the Corporation ranking as to any
such distribution on a parity with the Preferred Shares of such series upon such
dissolution, liquidation or winding up unless proportionate distributive amounts
shall be paid on account of the Preferred Shares of such series, ratably, in
proportion to the full distributive amounts for which holders of all such parity
shares are respectively entitled upon such dissolution, liquidation or winding
up. After payment of the full amount of the liquidation distribution to which
they are entitled, the holders of such series of the Preferred Shares will have
no right or claim to any of the remaining assets of the Corporation.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of the Preferred Shares, or except as expressly required by
applicable law, the holders of the Preferred Shares will not be entitled to
vote. In the event the Corporation issues shares of a series of the Preferred
Shares, unless otherwise indicated in the Prospectus Supplement relating to such
series, each share will be entitled to one vote on matters on which holders of
such series are entitled to vote. However, as more fully described under
"DESCRIPTION OF DEPOSITARY SHARES," if the Corporation elects to provide for the
issuance of Depositary Shares representing fractional interests in a share of
such series of the Preferred Shares, the
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holders of each such Depositary Share will, in effect, be entitled through the
Depositary to such fraction of a vote, rather than a full vote. In the case of
any series of Preferred Shares having one vote per share on matters on which
holders of such series are entitled to vote, the voting power of such series, on
matters on which holders of such series and holders of any other series of
Preferred Shares or a series of Preferred Stock are entitled to vote as a single
class, will depend on the number of shares in such series, not the aggregate
stated value, liquidation preference or initial offering price of the shares of
such series of the Preferred Shares.
Whenever dividends on any series of the Preferred Shares shall be in
arrears for such number of dividend periods which shall in the aggregate contain
not less than 540 days, the holders of shares of the Preferred Shares of such
series (voting together as a class with holders of shares of any one or more
series of Preferred Stock ranking on a parity with the Preferred Shares as to
dividends and upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two additional
directors on the terms set forth below and until all past dividends accumulated
on Preferred Shares of such series shall have been paid in full. Each holder of
Preferred Shares of such series will have one vote for each share of stock held
and each other series will have such number of votes, if any, for each share of
stock held as may be granted to them. In such case, the Board of Directors of
the Corporation will be increased by two directors, and the holders of the
Preferred Shares of such series (together with the holders of shares of any one
or more series of Preferred Stock ranking on such a parity and upon which like
voting rights have been conferred and are exercisable) will have the exclusive
right as members of such class, as outlined above, to elect two directors at the
next annual meeting of stockholders.
So long as any Preferred Shares of any series remain outstanding, the
Corporation will not, without the consent of the holders of the outstanding
Preferred Shares of such series and outstanding shares of all series of
Preferred Stock ranking on a parity with the Preferred Shares of such series
either as to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been conferred
and are then exercisable, by a vote of at least two-thirds of all such
outstanding Preferred Shares and shares of Preferred Stock voting together as a
class, given in person or by proxy, either in writing or at a meeting, (i)
authorize, create or issue, or increase the authorized or issued amount of, any
class or series of stock ranking prior to the Preferred Shares with respect to
payment of dividends or the distribution of assets on liquidation, dissolution
or winding up, or (ii) amend, alter or repeal, whether by merger, consolidation
or otherwise, the provisions of the Corporation's Articles or of the resolutions
contained in a Certificate of Designations for any series of the Preferred
Shares designating such series of the Preferred Shares and the preferences and
relative, participating, optional or other special rights and qualifications,
limitations and restrictions thereof, so as to adversely affect any right,
preference, privilege or voting power of the Preferred Shares or the holders
thereof; provided, however, that any increase in the amount of the authorized
Preferred Stock or the creation and issuance of other series of Preferred Stock,
or any increase in the amount of authorized shares of any series of Preferred
Stock, in each case, ranking on a parity with or junior to the Preferred Shares
with respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up will not be deemed to adversely affect
such rights, preferences, privileges or voting powers.
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DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined) and of the Depositary Shares
and Depositary Receipts does not purport to be complete and is subject to and
qualified in its entirety by reference to the Deposit Agreement and Depositary
Receipts relating to each series of the Preferred Shares a form of which is
filed as an exhibit to the Registration Statement to which this Prospectus
pertains.
GENERAL
The Corporation may, at its option, elect to offer fractional interests in
Preferred Shares, rather than full Preferred Shares. In the event such option is
exercised, the Corporation will provide for the issuance by a Depositary to the
public of Depositary Receipts evidencing Depositary Shares, each of which will
represent a fractional interest (to be set forth in the Prospectus Supplement
relating to a particular series of the Preferred Shares) in a share of a
particular series of the Preferred Shares as described below.
The shares of any series of the Preferred Shares underlying the Depositary
Shares will be deposited under a separate deposit agreement (the "Deposit
Agreement") between the Corporation and a bank or trust company selected by the
Corporation having its principal executive office in the United States and
having a combined capital and surplus of at least $50,000,000 (the
"Depositary"). The Prospectus Supplement relating to a series of Depositary
Shares will set forth the name and address of the principal executive office of
the Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fractional
interest in a Preferred Share underlying such Depositary Share, to all the
rights and preferences of the Preferred Shares underlying such Depositary Share
(including dividend, voting, redemption, conversion and liquidation rights).
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Corporation, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Corporation's expense.
Upon surrender of the Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called for
redemption), the owner of the Depositary Shares evidenced thereby is entitled to
delivery at such office, to or upon his order, of the number of Preferred Shares
and any money or other property represented by such Depositary Shares. Partial
Preferred Shares will not be issued. If the Depositary Receipts delivered by the
holder evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole Preferred Shares to be
withdrawn, the Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares. Holders
of Preferred Shares thus withdrawn will not thereafter be entitled to deposit
such shares under the Deposit Agreement or to receive Depositary Shares
therefor. The Corporation does not expect that there will be any public trading
market for the Preferred Shares represented by Depositary Receipts except as
represented by the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Shares to the record holders
of Depositary Shares relating to such Preferred Shares in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed shall be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not
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feasible to make such distribution, in which case the Depositary may, with the
approval of the Corporation, sell such property and distribute the net proceeds
from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Corporation to
holders of the Preferred Shares shall be made available to holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Shares underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Shares held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Shares. Whenever the Corporation redeems Preferred Shares held
by the Depositary, the Depositary will redeem as of the same redemption date the
number of Depositary Shares relating to the Preferred Shares so redeemed. If
less than all the Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed will be selected by lot or pro rata as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the Preferred
Shares are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Shares. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Shares) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the number of shares of Preferred Shares
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of Preferred Shares underlying such
Depositary Shares in accordance with such instructions, and the Corporation will
agree to take all action which may be deemed necessary by the Depositary in
order to enable the Depositary to do so. The Depositary will abstain from voting
Preferred Shares to the extent it does not receive specific instructions from
the holders of Depositary Shares relating to such Preferred Shares.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes
as if they were owners of the Preferred Shares represented by such Depositary
Shares, and, accordingly, will be entitled to take into account for federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Shares. In addition, (i) no gain or loss
will be recognized for federal income tax purposes upon the withdrawal of
Preferred Shares in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each Preferred Share to an exchanging owner of
Depositary Shares will, upon such exchange, be the same as the aggregate tax
basis of the Depositary Shares exchanged therefor, and (iii) the holding period
for the Preferred Shares in the hands of an exchanging owner of Depositary
Shares will include the period during which such person owned such Depositary
Shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Corporation and the Depositary.
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However, any amendment which materially and adversely alters the rights of the
existing holders of Depositary Shares will not be effective unless such
amendment has been approved by the record holders of at least a majority of the
Depositary Shares then outstanding. A Deposit Agreement may be terminated by the
Corporation or the Depositary only if (i) all outstanding Depositary Shares
relating thereto have been redeemed or (ii) there has been a final distribution
in respect of the Preferred Shares of the relevant series in connection with any
liquidation, dissolution or winding up of the Corporation and such distribution
has been distributed to the holders of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Corporation will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Corporation will pay charges of the Depositary in connection with the initial
deposit of the Preferred Shares and any redemption of the Preferred Shares.
Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Corporation which are delivered to the Depositary
and which the Corporation is required to furnish to the holders of the Preferred
Shares.
Neither the Depositary nor the Corporation will be liable if it is
prevented or delayed by law or any circumstance beyond its control in performing
its obligations under the Deposit Agreement. The obligations of the Corporation
and the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares or
Preferred Shares unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by persons
presenting Preferred Shares for deposit, holders of Depositary Shares or other
persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Corporation
notice of its election to do so, and the Corporation may at any time remove the
Depositary, any such resignation or removal to take effect upon the appointment
of a successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
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DESCRIPTION OF COMMON STOCK
GENERAL
The Board of Directors of the Corporation is authorized to issue a maximum
of 100,000,000 shares of Common Stock. As of September 30, 1996, 30,160,458
shares of Common Stock were issued, of which 29,136,171 were outstanding and
1,024,287 were held as treasury shares. The Corporation announced on December
10, 1996, that it would split its Common Stock 3-for-1 and pay a dividend of
Common Stock on January 13, 1997 to Shareholders of Common Stock of record on
December 7, 1996. The terms and conditions of the Common Stock are governed by
the laws of the State of Ohio as well as by the Corporation's Articles and Code
of Regulations.
Subject to any prior rights of any Preferred Stock then outstanding,
holders of the Common Stock are entitled to receive such dividends as are
declared by the Board of Directors of the Corporation out of funds legally
available therefor. For information concerning legal limitations on the ability
of the Bank to supply funds to the Corporation, see "CERTAIN REGULATORY
MATTERS." Subject to the rights, if any, of any Preferred Stock then
outstanding, all voting rights are vested in the holders of Common Stock.
Holders of Common Stock are entitled to one vote per share on all matters to be
voted upon by the shareholders of the Corporation. Holders of Common Stock are
not entitled to cumulate votes for the election of directors. The Board of
Directors of the Corporation is divided into three classes. The directors of the
class elected at each annual election hold office for a term of three years. The
Corporation's Articles provide that directors may be removed only for "cause",
which is defined as the conviction of a felony or a finding by a court of
negligence or misconduct in the performance of a director's duties.
The Common Stock has no preemptive rights and is not subject to further
calls or assessments by the Corporation. The transfer agent and registrar for
the Common Stock is the Bank.
The Corporation's Articles provide that, unless certain conditions have
been met, specified business combination transactions (including, but not
limited to, a merger with, or sale of all or substantially all the Corporation's
assets to, a "related person") submitted to shareholders require the affirmative
vote of holders of at least 80% of the Corporation's outstanding shares of
Common Stock and the affirmative vote of at least 50% of the outstanding shares
of Common Stock held by shareholders other than the related person. Generally, a
"related person" is one who beneficially owns 20% or more of the Corporation's
outstanding shares of Common Stock. Amendments to certain provisions of the
Corporation's Articles (including, among others, those requiring a classified
Board of Directors of the Corporation and the super-majority voting provisions),
also must be approved by at least 80% of the outstanding shares of Common Stock
and, if there is a related person, at least 50% of the outstanding shares not
held by the related person.
RIGHTS PLAN
Each share of Common Stock outstanding (and each share issued by the
Corporation prior to the occurrence of certain events) carries with it one
preferred stock purchase right ("Preferred Stock Purchase Right") to purchase,
at a price of $100.00, one-hundredth of a share of the Corporation's Series A
Preferred Stock. The Preferred Stock Purchase Rights are exercisable only if a
person or group (an "Adverse Person") acquires or obtains the right to acquire
ownership of 20% or more of the Corporation's Common Stock, commences a tender
or exchange offer for 30% or more of the Common Stock or is declared an "Adverse
Person" by the Corporation's Board of Directors. The Corporation is entitled to
redeem the Preferred Stock Purchase Rights at a price of one cent per Preferred
Stock Purchase Right at any time before the twentieth day following the date a
20% position has been acquired.
If the Corporation is acquired in a merger or other business combination
transaction, each Preferred Stock Purchase Right entitles its holder (other than
an Acquiring Person or Adverse Person) to purchase, at the Preferred Stock
Purchase Right's then-current exercise price, a number of the acquiring
company's common shares having a market value at that time of twice the
Preferred Stock Purchase Right's exercise price. The Preferred Stock Purchase
Rights also provide a similar right for holders (other than an Acquiring Person
or Adverse Person) to purchase Common Stock having a market value at that time
of twice the
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Preferred Stock Purchase Right's exercise price under certain circumstances
where a person or group has acquired a 30% block of the Corporation's Common
Stock or been declared an "Adverse Person" by a majority of the Corporation's
outside directors.
As long as the Preferred Stock Purchase Rights are attached to and
evidenced by the certificates representing the Common Stock, the Corporation
will continue to issue one Preferred Stock Purchase Right with each share of
Common Stock that shall become outstanding. A Preferred Stock Purchase Right is
presently attached to each issued and outstanding share of Common Stock. The
Preferred Stock Purchase Rights will expire on October 20, 1999 unless earlier
redeemed.
The Preferred Stock Purchase Rights have certain antitakeover effects. The
Preferred Stock Purchase Rights may cause substantial dilution to a person or
group that attempts to acquire the Corporation on terms not approved by the
Board of Directors of the Corporation. The Preferred Stock Purchase Rights
should not interfere with any merger or other business combination approved by
the Board of Directors of the Corporation since the Rights may be redeemed by
the Corporation prior to the consummation of such transactions.
The Rights Agreement between the Corporation and Mellon Bank, N.A., as
Rights Agent, dated as of October 10, 1989, has been filed as an exhibit to the
Company's Current Report on Form 8-A dated May 5, 1994. The description of the
Rights found in the foregoing Form 8-A has been incorporated by reference herein
and copies of such Form can be obtained in the manner set forth under
"INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE."
31
<PAGE> 33
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue Securities Warrants for the purchase of Debt
Securities, Preferred Shares, Depositary Shares or Common Stock. Securities
Warrants may be issued independently or together with Debt Securities, Preferred
Shares or Depositary Shares offered by any Prospectus Supplement and may be
attached to or separate from such Debt Securities, Preferred Shares or
Depositary Shares. Each series of Securities Warrants will be issued under a
separate warrant agreement (a "Securities Warrant Agreement") to be entered into
between the Corporation and a bank or trust company, as securities warrant agent
(the "Securities Warrant Agent"), all as set forth in the Prospectus Supplement
relating to the particular issue of offered Securities Warrants. The Securities
Warrant Agent will act solely as an agent of the Corporation in connection with
securities warrant certificates (the "Securities Warrant Certificates") and will
not assume any obligation or relationship of agency or trust for or with any
holders of Securities Warrant Certificates or beneficial owners of Securities
Warrants. Copies of the forms of Securities Warrant Agreements, including the
forms of Securities Warrant Certificates representing the Securities Warrants,
are filed as exhibits to the Registration Statement to which this Prospectus
pertains. The following summaries of certain provisions of the forms of
Securities Warrant Agreements and Securities Warrant Certificates do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Securities Warrant Agreements and the
Securities Warrant Certificates.
GENERAL
If Securities Warrants are offered, the applicable Prospectus Supplement
will describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities, the following where
applicable: (i) the offering price and exercise price; (ii) the currencies in
which such Securities Warrants are being offered; (iii) the designation,
aggregate principal amount, currencies, denominations and terms of the series of
Debt Securities purchasable upon exercise of such Securities Warrants; (iv) the
designation and terms of any series of Debt Securities, Preferred Shares or
Depositary Shares with which such Securities Warrants are being offered and the
number of such Securities Warrants being offered with each such Debt Security,
Preferred Share or Depositary Share; (v) the date on and after which such
Securities Warrants and the related series of Debt Securities, Preferred Shares
or Depositary Shares will be transferable separately; (vi) the principal amount
of the series of Debt Securities purchasable upon exercise of each such
Securities Warrant and the price at which and currencies in which such principal
amount of Debt Securities of such series may be purchased upon such exercise;
(vii) the date on which the right to exercise such Securities Warrants shall
commence and the date on which such right shall expire (the "Expiration Date");
(viii) whether the Securities Warrants will be issued in registered or bearer
form; (ix) United States federal income tax consequences; and (x) any other
terms of such Securities Warrants.
In the case of Securities Warrants for the purchase of Preferred Shares,
Depositary Shares or Common Stock, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price and exercise price; (ii) the aggregate number
of shares purchasable upon exercise of such Securities Warrants and, in the case
of Securities Warrants for Preferred Shares or Depositary Shares, the
designation, aggregate number and terms of the series of Preferred Shares
purchasable upon exercise of such Securities Warrants or underlying the
Depositary Shares purchasable upon exercise of such Securities Warrants; (iii)
the designation and terms of the series of Debt Securities, Preferred Shares or
Depositary Shares with which such Securities Warrants are being offered and the
number of such Securities Warrants being offered with each such Debt Security,
Preferred Share or Depositary Share; (iv) the date on and after which such
Securities Warrants and the related series of Debt Securities, Preferred Shares
or Depositary Shares will be transferable separately; (v) the number of
Preferred Shares, Depositary Shares or shares of Common Stock purchasable upon
exercise of each such Securities Warrant and the price at which such number of
Preferred Shares or Depositary Shares of such series or shares of Common Stock
may be purchased upon each exercise; (vi) the date on which the right to
exercise such Securities Warrants shall commence and the Expiration Date; (vii)
United States federal income tax consequences; and (viii) any other terms of
such Securities Warrants. Securities Warrants for the purchase of Preferred
Shares, Depositary Shares or Common Stock will be offered and exercisable for
U.S. dollars only and will be in registered form only.
32
<PAGE> 34
Securities Warrant Certificates may be exchanged for new Securities Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Securities Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Securities
Warrant to purchase Debt Securities, holders of such Securities Warrants will
not have any of the rights of Holders of the Debt Securities purchasable upon
such exercise, including the right to receive payments of principal of, premium,
if any, or interest, if any, on the Debt Securities purchasable upon such
exercise or to enforce covenants in the applicable indenture. Prior to the
exercise of any Securities Warrants to purchase Preferred Shares, Depositary
Shares or Common Stock, holders of such Securities Warrants will not have any
rights of holders of the Preferred Shares, Depositary Shares or Common Stock
purchasable upon such exercise, including the right to receive payments of
dividends, if any, on the Preferred Shares, Depositary Shares or Common Stock
purchasable upon such exercise or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of Preferred Shares, Depositary
Shares or shares of Common Stock, as the case may be, at such exercise price as
shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Securities Warrants. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Corporation), unexercised Securities Warrants will
become void.
Securities Warrants may be exercised by delivering to the Securities
Warrant Agent payment as provided in the applicable Prospectus Supplement of the
amount required to purchase the Debt Securities, Preferred Shares, Depositary
Shares or Common Stock, as the case may be, purchasable upon such exercise
together with certain information set forth on the reverse side of the
Securities Warrant Certificate. Securities Warrants will be deemed to have been
exercised upon receipt of payment of the exercise price, subject to the receipt,
within five business days, of the Securities Warrant Certificate evidencing such
Securities Warrants. Upon receipt of such payment and the Securities Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Securities Warrant Agent or any other office indicated in the applicable
Prospectus Supplement, the Corporation will, as soon as practicable, issue and
deliver the Debt Securities, Preferred Shares, Depositary Shares or Common
Stock, as the case may be, purchasable upon such exercise. If fewer than all of
the Securities Warrants represented by such Securities Warrant Certificate are
exercised, a new Securities Warrant Certificate will be issued for the remaining
amount of Securities Warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
The Securities Warrant Agreements may be amended or supplemented without
the consent of the holders of the Securities Warrants issued thereunder to
effect changes that are not inconsistent with the provisions of the Securities
Warrants and that do not adversely affect the interests of the holders of the
Securities Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a Common
Stock Warrant are subject to adjustment in certain events, including (i) the
issuance of capital stock as a dividend or distribution on the Common Stock;
(ii) subdivisions and combinations of the Common Stock; (iii) the issuance to
all holders of Common Stock of certain rights or warrants entitling them to
subscribe for or purchase Common Stock within 45 days after the date fixed for
the determination of the stockholders entitled to receive such rights or
warrants, at less than the current market price (as defined in the Warrant
Agreement for such series of Common Stock Warrants); (iv) the distribution to
all holders of Common Stock of evidences of indebtedness or assets of the
Corporation (excluding certain cash dividends and distributions described below)
or rights or warrants (excluding those referred to above). In the event that the
Corporation shall distribute any rights or warrants to acquire capital stock
pursuant to clause (iii) above (the "Capital Stock Rights"), pursuant to which
separate certificates
33
<PAGE> 35
representing such Capital Stock Rights will be distributed subsequent to the
initial distribution of such Capital Stock Rights (whether or not such
distribution shall have occurred prior to the date of the issuance of a series
of Common Stock Warrants), such subsequent distribution shall be deemed to be
the distribution of such Capital Stock Rights; provided that the Corporation
may, in lieu of making any adjustment in the exercise price of and the number of
shares of Common Stock covered by a Common Stock Warrant upon a distribution of
separate certificates representing such Capital Stock Rights, make proper
provision so that each holder of such a Common Stock Warrant who exercises such
Common Stock Warrant (or any portion thereof) (a) before the record date for
such distribution of separate certificates shall be entitled to receive upon
such exercise shares of Common Stock issued with Capital Stock Rights and (b)
after such record date and prior to the expiration, redemption or termination of
such Capital Stock Rights shall be entitled to receive upon such exercise, in
addition to the shares of Common Stock issuable upon such exercise, the same
number of such Capital Stock Rights as would a holder of the number of shares of
Common Stock that such Common Stock Warrant so exercised would have entitled the
holder thereof to acquire in accordance with the terms and provisions applicable
to the Capital Stock Rights if such Common Stock Warrant was exercised
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Corporation or any majority owned subsidiary
shall not be deemed outstanding for the purpose of any adjustment.
No adjustment in the exercise price of and the number of shares of Common
Stock covered by a Common Stock Warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless such adjustment would require a change of at
least 1% in the exercise price then in effect; provided that any such adjustment
not so made will be carried forward and taken into account in any subsequent
adjustment; provided, further, that any such adjustment not so made shall be
made no later than three years after the occurrence of the event requiring such
adjustment to be made or carried forward. Except as stated above, the exercise
price of and the number of shares of Common Stock covered by a Common Stock
Warrant will not be adjusted for the issuance of Common Stock or any securities
convertible into or exchangeable for Common Stock, or securities carrying the
right to purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case, as a result of which
holders of the Corporation's Common Stock shall be entitled to receive stock,
securities, other property or assets (including cash) with respect to or in
exchange for such Common Stock, the holders of the Common Stock Warrants then
outstanding will be entitled thereafter to convert such Common Stock Warrants
into the kind and amount of shares of stock and other securities or property
which they would have received upon such reclassification, change,
consolidation, merger, sale or conveyance had such Common Stock Warrants been
exercised immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance.
34
<PAGE> 36
PLAN OF DISTRIBUTION
The Corporation may offer and sell the Offered Securities in any of two
ways: (i) through agents or (ii) directly to one or more purchasers. The
Prospectus Supplement with respect to any of the Offered Securities will set
forth the terms of the offering of such Offered Securities, including the name
or names of any underwriters or agents, the purchase price of such Offered
Securities, the proceeds to the Corporation from such sale, any underwriting
discounts or agency fees and other items constituting underwriters' or agents'
compensation, the initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers, and any securities exchanges on which
such Offered Securities may be listed.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification by the Corporation against certain
civil liabilities, including liabilities under the Securities Act, or to
contributions with respect to payments which the underwriters or agents may be
required to make in respect thereof. Underwriters and agents, and affiliates
thereof, may be customers of, engage in transactions with, or perform services
for the Corporation and its affiliates in the ordinary course of business.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities that are issuable as Bearer Securities will agree that, in
connection with the original issuance of such Bearer Securities, it will not
offer, sell or deliver, directly or indirectly, Bearer Securities to a United
States person or to any person within the United States, except to the extent
permitted under United States Treasury regulations.
All Offered Securities, except for the Common Stock, will be new issues of
securities with no established trading market. Any underwriters to whom Offered
Securities are sold by the Corporation for public offering and sale may make a
market in such Offered Securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given concerning the liquidity of the trading market for any
Offered Securities.
VALIDITY OF SECURITIES
The validity of the Offered Securities will be passed upon for the
Corporation by Thomas J. Lakin, Esq., Executive Vice President, General Counsel
of the Corporation. As of December 31, 1996, Mr. Lakin was the beneficial owner
of 10,578 shares of Common Stock and had options to acquire 63,152 additional
shares.
EXPERTS
The consolidated financial statements of the Corporation and subsidiaries
as of December 31, 1995 and 1994 and for each of the three years in the period
ended December 31, 1995, incorporated by reference in this registration
statement, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein in reliance upon the authority of said firm as experts in
accounting and auditing, in giving such report.
35
<PAGE> 37
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrant in connection with the issuance and
distribution of the securities being registered:
<TABLE>
<S> <C>
Registration Fee.......................................................... $151,515
*Legal Fees and Expenses.................................................. 120,000
*Trustee Fees and Expenses................................................ 30,000
*Accounting Fees and Expenses............................................. 10,000
*Blue Sky................................................................. 7,500
*Printing and Engraving Fees.............................................. 20,000
*Rating Agency Fees....................................................... 135,000
*Listing Fees............................................................. 0
*Miscellaneous............................................................ 0
--------
Total........................................................... $474,015
========
</TABLE>
- ---------------
* Estimated pursuant to instruction to Item 511 of Regulation S-K.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Articles of Incorporation, as amended, and Code of
Regulations require the Registrant to indemnify, to the full extent permitted
(or not prohibited) by the General Corporation Law of the State of Ohio, any
person with respect to any civil, criminal, administrative or investigative
action or proceeding instituted or threatened by reason of the fact that he is
or was a director or officer of the Registrant or is or was serving at the
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
Section 1701.13 of the General Corporation Law of the State of Ohio
authorizes the indemnification of directors and officers against liability
incurred by reason of being a director or officer and against expenses
(including attorneys' fees, judgments, fines and amounts paid in settlement) in
connection with any action seeking to establish such liability, (i) in the case
of third-party claims, if the officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the corporation and (ii) in the case of actions by or in the right of the
corporation, if the officer or director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, provided that such officer or director shall not have been adjudged
liable for negligence or misconduct (unless a court otherwise determines that
indemnification is proper) or that such director shall not have assented to
certain payments, distributions or loans prohibited by law. Indemnification is
also authorized with respect to any criminal action or proceeding where the
officer or director had no reasonable cause to believe his conduct was unlawful.
II-1
<PAGE> 38
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement for Debt Securities
1.2 Form of Underwriting Agreement for Preferred Stock
1.3 Form of Underwriting Agreement for Common Stock
1.4 Form of Distribution Agreement
3.1 Amended Articles of Incorporation of Star Banc Corporation (previously filed as an
exhibit to the registrant's Annual Report on Form 10-K for the year ended December
31, 1991 and incorporated herein by reference)
3.2 Code of Regulations (previously filed as an exhibit to the registrant's Annual
Report on Form 10-K for the year ended December 31, 1988, and incorporated herein by
reference)
4.1 Form of Senior Indenture
4.2 Form of Senior Registered Note
4.3 Form of Senior Medium-Term Note (Fixed Rate)
4.4 Form of Senior Medium-Term Note (Floating Rate)
4.5 Form of Subordinated Indenture
4.6 Form of Subordinated Registered Note
4.7 Form of Subordinated Medium-Term Note (Fixed Rate)
4.8 Form of Subordinated Medium-Term Note (Floating Rate)
4.9 Form of Certificate of Designations for Preferred Stock
4.10 Form of Certificate for Preferred Stock
4.11 Form of Certificate for Convertible Preferred Stock
4.12 Form of Certificate for Common Stock
4.13 Form of Deposit Agreement
4.14 Form of Depositary Receipt (included within Exhibit 4.13)
4.15 Form of Warrant Agreement for Debt Securities
4.16 Form of Warrant Agreement for Preferred Stock
4.17 Form of Warrant Agreement for Common Stock
5.1 Opinion of Thomas J. Lakin, Esq.
12.1 Statement Re Computation of Ratios
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Thomas J. Lakin, Esq. (included within Exhibit 5.1)
24.1 Powers of Attorney
25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a corporation
designated to act as Trustee
</TABLE>
ITEM 17. UNDERTAKINGS
(a) 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;
II-2
<PAGE> 39
(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 the 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 and 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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to section 13 or section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in 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.
(c) The undersigned hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE> 40
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cincinnati and the State of Ohio, on the day of
, 1997.
STAR BANC CORPORATION
By /s/ JERRY A. GRUNDHOFER
------------------------------------
Jerry A. Grundhofer
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the day of , 1997, by
the following persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------------- --------------------------------------------
<C> <S>
/s/ JERRY A. GRUNDHOFER Chairman of the Board, President and Chief
- -------------------------------------------- Executive Officer
Jerry A. Grundhofer
/s/ DAVID M. MOFFETT Executive Vice President and Chief Financial
- -------------------------------------------- Officer
David M. Moffett
/s/ JAMES D. HOGAN Senior Vice President and Controller, Chief
- -------------------------------------------- Accounting Officer
James D. Hogan
* Director
- --------------------------------------------
James R. Bridgeland, Jr.
* Director
- --------------------------------------------
Laurence L. Browning, Jr.
* Director
- --------------------------------------------
Victoria B. Buyniski
* Director
- --------------------------------------------
Samuel M. Cassidy
* Director
- --------------------------------------------
V. Anderson Coombe
* Director
- --------------------------------------------
John C. Dannemiller
</TABLE>
II-4
<PAGE> 41
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------------- --------------------------------------------
<C> <S>
* Director
- --------------------------------------------
J.P. Hayden, Jr.
* Director
- --------------------------------------------
Roger L. Howe
* Director
- --------------------------------------------
Thomas J. Klinedinst, Jr.
* Director
- --------------------------------------------
Charles S. Mechem, Jr.
* Director
- --------------------------------------------
Daniel J. Meyer
* Director
- --------------------------------------------
David B. O'Maley
* Director
- --------------------------------------------
O'dell M. Owens, M.D., M.P.H.
* Director
- --------------------------------------------
Thomas E. Petry
* Director
- --------------------------------------------
William C. Portman
* Director
- --------------------------------------------
Oliver W. Waddell
/s/ JERRY A. GRUNDHOFER Attorney-in-fact for the persons indicated
- -------------------------------------------- above with an *.
Jerry A. Grundhofer
</TABLE>
II-5
<PAGE> 42
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------ -------------------------------------------------------------------------- ------------
<C> <S> <C>
1.1 Form of Underwriting Agreement for Debt Securities*.......................
1.2 Form of Underwriting Agreement for Preferred Stock*.......................
1.3 Form of Underwriting Agreement for Common Stock*..........................
1.4 Form of Distribution Agreement............................................
3.1 Amended Articles of Incorporation of Star Banc Corporation (previously
filed as an exhibit to the registrant's Annual Report on Form 10-K for the
year ended December 31, 1991 and incorporated herein by reference)........
3.2 Code of Regulations (previously filed as an exhibit to the registrant's
Annual Report on Form 10-K for the year ended December 31, 1988, and
incorporated herein by reference).........................................
4.1 Form of Senior Indenture..................................................
4.2 Form of Senior Registered Note**..........................................
4.3 Form of Senior Medium-Term Note (Fixed Rate)**............................
4.4 Form of Senior Medium-Term Note (Floating Rate)**.........................
4.5 Form of Subordinated Indenture............................................
4.6 Form of Subordinated Registered Note**....................................
4.7 Form of Subordinated Medium-Term Note (Fixed Rate)**......................
4.8 Form of Subordinated Medium-Term Note (Floating Rate)**...................
4.9 Form of Certificate of Designations for Preferred Stock**.................
4.10 Form of Certificate for Preferred Stock**.................................
4.11 Form of Certificate for Convertible Preferred Stock**.....................
4.12 Form of Certificate for Common Stock**....................................
4.13 Form of Deposit Agreement**...............................................
4.14 Form of Depositary Receipt (to be included within Exhibit 4.13)**.........
4.15 Form of Warrant Agreement for Debt Securities**...........................
4.16 Form of Warrant Agreement for Preferred Stock**...........................
4.17 Form of Warrant Agreement for Common Stock**..............................
5.1 Opinion of Thomas J. Lakin, Esq. .........................................
12.1 Statement Re Computation of Ratios........................................
23.1 Consent of Arthur Andersen LLP............................................
23.2 Consent of Thomas J. Lakin, Esq. (to be included within Exhibit 5.1)......
24.1 Powers of Attorney........................................................
25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a
corporation designated to act as Trustee..................................
</TABLE>
- ---------------
* to be filed by amendment or in subsequent Form 8-K
** to be filed by amendment
<PAGE> 1
Exhibit 1.4
Star Banc
Corporation
$ Medium-Term Notes
Due From Nine Months From Date of Issue
Selling Agency Agreement
, 199
[Co-agents]
Dear Sirs:
Star Banc Corporation, an Ohio corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to $ aggregate principal amount of its Medium-Term
Notes Due From Nine Months From Date of Issue (the "Notes"). The Notes will be
issued under an indenture (the "Indenture") dated as of , 199
between the Company and , as trustee (the "Trustee"). Unless
otherwise specifically provided for and set forth in a Pricing Supplement (as
defined below), the Notes will be issued in minimum denominations of $1,000 and
in denominations exceeding such amount by integral multiples of $1,000, will be
issued only in fully registered form and will have the interest rates,
maturities and, if applicable, other terms set forth in such Pricing Supplement.
The Notes will be issued, and the terms thereof established, in accordance with
the Indenture and the Medium-Term Notes Administrative Procedures attached
hereto as Exhibit A (the "Procedures") (unless a Terms Agreement (as defined in
Section 2(b)) modifies or otherwise supersedes such Procedures with respect to
the Notes issued pursuant to such Terms Agreement). The Procedures may be
amended only by written agreement of the Company and you after notice to, and
with the approval of, the Trustee. For the purposes of this Agreement, the term
"Agent" shall refer to any of you acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term "Purchaser" shall refer to one of you acting solely as
principal pursuant to Section 2(b) and not as agent, and the term "you" shall
refer to you collectively whether at any time any of you is acting in both such
capacities or in either such capacity. In acting under this Agreement, in
whatever capacity, each of you is acting individually and not jointly.
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<PAGE> 2
1. Representations and Warranties. The Company rep-
resents and warrants to, and agrees with, you as set forth below in
this Section 1. Certain terms used in this Section 1 are defined
in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (File Number: 33- ), including a basic
prospectus, which has become effective, for the registration under the
Act of $500,000,000 aggregate principal amount of securities (the
"Securities"), including the Notes. Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1)(ix) or (x) under the Act and complies in all other
material respects with said Rule. The Company has included in such
registration statement, or has filed or will file with the Commission
pursuant to the applicable paragraph of Rule 424(b) under the Act, a
supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof
(the "Prospectus Supplement"). In connection with the sale of Notes the
Company proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the
Prospectus Supplement (each a "Pricing Supplement") specifying the
interest rates, maturity dates and, if appropriate, other similar terms
of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the
date of a Terms Agreement as of the date of any acceptance by the
Company of an offer to purchase notes hereunder and at the date of
delivery by the Company of any Notes sold hereunder
(a "Closing Date"), (i) the Registration Statement, as amended as of
any such time, and the Prospectus, as supplemented as of any such
time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make
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<PAGE> 3
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) 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 or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by any of you specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder,
(i) the Indenture will constitute a valid and binding instrument
enforceable against the Company in accordance with its terms except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles, and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate or exchange prevailing on a date determined pursuant to applicable
law or (B) governmental authority to limit, delay or prohibit the
making of payments outside the United States; (ii) such Notes will have
been duly authorized, executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture;
and (iii) the Notes and the Indenture will be substantially in the form
heretofore delivered to each Agent and conform in all material respects
to all statements relating thereto contained in the Prospectus.
(d) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the form
of basic prospectus relating to the Securities contained in the
Registration Statement at the Effective Date. "Prospectus" shall mean
the Basic Prospectus as supplemented by the Prospectus Supplement.
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<PAGE> 4
"Registration Statement" shall mean the registration statement referred
to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time. "Rule 415"
and "Rule 424" refer to such rules under the Act. Any reference herein
to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the
case may be; and any reference herein to the terms "amend", "amend-
ment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, the Prospectus Supplement or
the Prospectus, as the case may be, deemed to be incorporated therein
by reference.
2. Appointment of Agents; Solicitation by the Agents of
Offers to Purchase; Sales of Notes to a Purchaser. (a) Subject to
the terms and conditions set forth herein, the Company hereby
authorizes each of the Agents to act as its agent to solicit offers
for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, but
subject to the terms and conditions set forth herein, each of the Agents agrees,
as agent of the Company, to use its reasonable efforts to solicit offers to
purchase the Notes from the Company upon the terms and conditions set forth in
the Prospectus (and any supplement thereto) and in the Procedures. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been solicited by such Agent
and accepted by the Company, but such Agent shall not, except as otherwise
provided in this Agreement, be obligated to disclose the identity of any
purchaser or have any liability to the Company in the event any such purchase is
not consummated for any reason. Except as provided in Section 2(b), under no
circumstances will any Agent be obligated to purchase any Notes for its own
account. It is understood and agreed, however, that any Agent may purchase Notes
as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any
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<PAGE> 5
period of time or permanently, the solicitation of offers to purchase Notes.
Upon receipt of instructions from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time as the
Company has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage specified
in Schedule I hereto of the aggregate principal amount of the Notes sold by the
Company. Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent as
agent for the Company at such time and in such amounts as such Agent deems
advisable. So long as this Agreement shall remain in effect with respect to any
Agent, the Company shall not, without the consent of any such Agent, solicit or
accept offers to purchase Notes otherwise than through one of the Agents;
provided, however, that the Company reserves the right from time to time (i) to
sell Notes directly to an investor, and (ii) to accept a specific offer to
purchase Notes solicited by, and made to the Company by or through, a dealer
other than the Agents (each an "Other Dealer"), without obtaining the prior
consent of any of the Agents, provided that (x) the Company shall give each of
the Agents notice of its decision to accept such an offer to purchase Notes in
advance of such acceptance, (y) any Other Dealer shall agree to be bound by and
subject to the terms and conditions of this Agreement binding on the
Agents (including the commission schedule attached hereto as Schedule I),
and (z) so long as this Agreement remains in effect, the Company shall not
appoint any other agent or dealer for the purpose of soliciting or receiving
offers to purchase Notes on a continuous basis.
If the Company shall default in its obligations to deliver
Notes to a purchaser whose offer it has accepted, the Company shall indemnify
and hold each of you harmless against any loss, claim or damage arising from or
as a result of such default by the Company.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any of you determines that the Company shall sell Notes
directly to any of you as principal, each such sale of Notes shall be made in
accordance with the terms of this Agreement and a supplemental agreement
relating to such sale. Each such supplemental agreement (which may be
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<PAGE> 6
an oral or written agreement, if confirmed in writing by facsimile transmission
or otherwise) is herein referred to as a "Terms Agreement". Each Terms Agreement
shall describe the Notes to be purchased by the Purchaser pursuant thereto and
shall specify the aggregate principal amount of such Notes, the price to be paid
to the Company for such Notes, the maturity date of such Notes, the rate at
which interest will be paid on such Notes, the dates on which interest will be
paid on such Notes and the record date with respect to each such payment of
interest, the Closing Date for the purchase of such Notes, the place of delivery
of the Notes and payment therefor, the method of payment and any requirements
for the delivery of opinions of counsel, certificates from the Company or its
officers or a letter from the Company's independent public accountants as
described in Section 6(b). Any such Terms Agreement may also specify the period
of time referred to in Section 4(m). Any written Terms Agreement may be in the
form attached hereto as Exhibit B. The Purchaser's commitment to purchase Notes
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms and
conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing Date
agreed to in such Terms Agreement, against payment of funds to the Company in
the net amount due to the Company for such Notes by the method and in the form
set forth in the Procedures unless otherwise agreed to between the Company and
the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall be
purchased by such Purchaser at a price equal to 100% of the principal amount
thereof less a percentage equal to the commission applicable to an agency sale
of a Note of identical maturity and (ii) may be resold by such Purchaser at
varying prices from time to time or, if set forth in the applicable Terms
Agreement and Pricing Supplement, at a fixed public offering price. In
connection with any resale of Notes purchased, a Purchaser may use a selling or
dealer group and may reallow to any broker or dealer any portion of the discount
or commission payable pursuant hereto.
3. Offering and Sale of Notes. Each Agent and the Company
agree to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures.
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<PAGE> 7
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes), the Company will
not file any amendment of the Registration Statement or supplement to
the Prospectus (except for (i) periodic or current reports filed under
the Exchange Act, (ii) a supplement relating to any offering of Notes
providing solely for the specification of or a change in the maturity
dates, interest rates, issuance prices or other similar terms of any
Notes or (iii) a supplement relating to an offering of Securities other
than the Notes) unless the Company has furnished each of you a copy for
your review prior to filing and given each of you a reasonable
opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each
supplement to the Prospectus to be filed with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence of such filing. The Company will
promptly advise each of you (i) when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (ii) when, prior to termination of any offering of
Notes, any amendment of the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Notes for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will make every
reasonable effort to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or to
supplement the Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the
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<PAGE> 8
Company promptly will (i) notify each of you to suspend solicitation of
offers to purchase Notes (and, if so notified by the Company, each of
you shall forthwith suspend such solicitation and cease using the
Prospectus as then supplemented), (ii) prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement
or omission or effect such compliance and (iii) supply any supplemented
Prospectus to each of you in such quantities as you may reasonably
request. If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to
paragraph (g) of this Section 4 in connection with the preparation or
filing of such amendment or supplement are satisfactory in all respects
to you, you will, upon the filing of such amendment or supplement with
the Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating
to the Notes is required to be delivered under the Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and
will furnish to each of you copies of such documents. In addition, on
or prior to the date on which the Company makes any announcement to the
general public concerning earnings or concerning any other event which
is required to be described, or which the Company proposes to describe,
in a document filed pursuant to the Exchange Act, the Company will
furnish to each of you the information contained or to be contained in
such announcement. The Company will notify each of you of (i) any
decrease in the rating of the Notes or any other debt securities of the
Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act) and (ii) any
notice given of any intended or potential decrease in any such rating
or of a possible change in any such rating that does not indicate the
direction of the possible change, as soon as the Company learns of any
such decrease or notice.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
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<PAGE> 9
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus may be
required by the Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes, and will arrange for the
determination of the legality of the Notes for purchase by
institutional investors.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of
counsel for the Company relating to the business, operations and
affairs of the Company, the Registration Statement, the Prospectus, and
any amendments thereof or supplements thereto, the Indenture, the
Notes, this Agreement, the Procedures and the performance by the
Company and you of its and your respective obligations hereunder and
thereunder as any of you may from time to time reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including the
fees and disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Registration
Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement, any Terms Agreement and all
other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel, incurred in compliance with
Section 4(f), the fees and disbursements of the Trustee and the fees of
any agency that rates the Notes, (ii) reimburse each of you as
requested for all out-of-pocket expenses (including without limitation
advertising expenses), if any, incurred by you in connection with this
Agreement which are approved by the Company and (iii) pay the
reasonable fees and expenses of your counsel incurred in connection
with this Agreement.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations and
warranties contained in this
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<PAGE> 10
Agreement are true and correct at the time of such acceptance, as
though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for
purposes of the foregoing affirmation and covenant such
representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such time).
Each such acceptance by the Company of an offer for the purchase of
Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the settlement date
for the sale of such Notes, after giving effect to the issuance of such
Notes, of any other Notes to be issued on or prior to such settlement
date and of any other Securities to be issued and sold by the Company
on or prior to such settlement date, the aggregate amount of Securities
(including any Notes) which have been issued and sold by the Company
will not exceed the amount of Securities registered pursuant to the
Registration Statement.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement relating to any offering of Securities other than the Notes
or providing solely for the specification of or a change in the
maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto), the Company will
deliver or cause to be delivered promptly to each of you, or at the
request of any Agent on the date of delivery of any Note sold
pursuant to a Terms Agreement with such Agent, a certificate
of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated
the date of the effectiveness of such amendment or the date of the
filing of such supplement, in form reasonably satisfactory to you, of
the same tenor as the certificate referred to in Section 5(d) but
modified to relate to the last day of the fiscal quarter for which
financial statements of the Company were last filed with the Commission
and to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement (i) relating to any offering of Securities other than the
Notes, (ii) providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto or (iii) setting
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<PAGE> 11
forth or incorporating by reference financial statements or other
information as of and for a fiscal quarter, unless, in the case of
clause (iii) above, in the reasonable judgment of any of you, such
financial statements or other information are of such a nature that an
opinion of counsel should be furnished), or at the request of any
Agent on the date of delivery of any Note sold pursuant to a
Terms Agreement with such Agent, the Company shall furnish or
cause to be furnished promptly to each of you a written opinion of
counsel of the Company satisfactory to each of you, dated the date of
the effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of the same tenor as
the opinion referred to in Section 5(b) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of
such supplement or, in lieu of such opinion, counsel last furnishing
such an opinion to you may furnish each of you with a letter to the
effect that you may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance
(except that statements in such last opinion will be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement).
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate
amended or supplemental financial information, or at the request of
any Agent on the date of delivery of any Note sold pursuant to a
Terms Agreement with such Agent, the Company shall cause
its independent public accountants promptly to furnish each of you a
letter, dated the date of the effectiveness of such amendment or the
date of the filing of such supplement, in form satisfactory to each of
you, of the same tenor as the letter referred to in Section 5(e) with
such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as amended
or supplemented to the date of such letter; provided, however, that, if
the Registration Statement or the Prospectus is amended or supplemented
solely to include or incorporate by reference financial information as
of and for a fiscal quarter, the Company's independent public
accountants may limit the scope of such letter to the unaudited
financial statements, the related "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and any other
information of an accounting, financial or statistical nature included
in such amendment or supplement, unless, in the reasonable judgment of
any of you, such letter should cover other information or changes in
specified financial statement line items.
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<PAGE> 12
(m) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Company shall not, without the
prior consent of the Purchaser thereunder, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company
(other than the Notes being sold pursuant to such Terms Agreement).
(n) The Company confirms as of the date hereof, and each
acceptance by the Company of an offer to purchase Notes will be deemed
to be an affirmation, that the Company is in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become
effective with the Securities and Exchange Commission or with the
Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way,
the Company will provide the Department notice of such business or
change, as appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase the Notes shall
be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, on the
Effective Date, when any supplement to the Prospectus is filed with the
Commission and as of each Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
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<PAGE> 13
(b) The Company shall have furnished to each Agent the opinion
of , counsel for the Company, dated the
Execution Time, to the effect that:
(i) each of the Company and Star Bank, National
Association (the "Bank") 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 is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business;
and the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended;
(ii) all the outstanding shares of capital stock of
the Bank have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital
stock of the Bank are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests,
claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Prospectus; and the Notes conform to
the description thereof contained in the Prospectus (subject
to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by
the fourth sentence of Section 1(a) of this Agreement);
(iv) the Indenture has been duly authorized, executed
and delivered, 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 except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further
as enforcement thereof may be limited by (i) requirements that
a claim with respect to any
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<PAGE> 14
Notes denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such claim)
be converted into U.S. dollars at a rate or exchange
prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States; and the Notes
have been duly authorized and, when executed and authenticated
in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture;
(v) 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 by reference in the Prospectus
describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such
matters;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been or will
be 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 and 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 the Registration
Statement at the Effective Date or at the Execution Time
contained any untrue statement
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<PAGE> 15
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 Prospectus
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;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the sale of the Notes as contemplated by this
Agreement and such other approvals (specified in such opinion)
as have been obtained;
(ix) neither the execution and delivery of the
Indenture, the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order, regulation or decree known to such counsel to
be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries;
(x) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement; and
(xi) the information contained in the Prospectus
under the caption "United States Tax Considerations" in MTN
Supplement ____ is a fair and accurate summary of the
principal Federal income tax consequences associated with the
ownership of the Notes.
-15-
<PAGE> 16
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 Agent 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 date such opinion is rendered.
(c) Each Agent shall have received from Simpson Thacher &
Bartlett, counsel for the Agents, such opinion or opinions, dated the
date hereof, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by the Chief Financial Officer and
the Treasurer or Controller of the Company, dated the Execution Time,
to the effect that the signers of such certificate have care fully
examined the Registration Statement, the Prospectus, any supplement to
the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as
if made on the date hereof and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or
-16-
<PAGE> 17
other), earnings, business or properties of the Company and
its subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(e) At the Execution Time, Arthur Andersen LLP shall have
furnished to each Agent a letter or letters (which may refer to letters
previously delivered to the Agents), dated as of the Execution Time, in
form and substance satisfactory to the Agents, confirming that they
are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited financial
statements, financial statement schedules and pro forma
financial statements, if any, included or incorporated in the
Registration Statement and the Prospectus and reported on by
them comply in form in all material respects with the
applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
and
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying out certain specified
procedures (but not an audit in accordance with generally
accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the
meetings of the directors of the Company and the Bank and the
committee thereof; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to the date of the most recent audited
financial statements included or incorporated in the
Prospectus, nothing came to their attention which caused them
to believe that:
(1) any material modifications should be
made to the unaudited financial statements included
or incorporated in the Registration Statement and the
Prospectus further to be in conformity with generally
accepted accounting principles;
-17-
<PAGE> 18
(2) any unaudited financial statements in-
cluded or incorporated in the Registration Statement
and the Prospectus do not comply in form in all
material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or in corporated in
quarterly reports on Form 10-Q under the Exchange
Act;
(3) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Prospectus, there were
any changes, at a specified date not more than five
business days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries
or capital stock of the Company or decreases in the
stockholders' equity of the Company or decreases in
capital of the Company and its subsidiaries] as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Prospectus, or
for the period from the date of the most recent
financial statements included or incorporated in the
Registration Statement and the Prospectus to such
specified date there were any decreases, as compared
with the corresponding period in the preceding year
in total or per share amounts of net income or net
interest income (net interest income after provision
for loan losses) of the Company and its subsidi-
aries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Agents; or
(4) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Prospectus do not
agree with the amounts set forth in the unaudited
financial statements for the same periods or were
not determined on a basis substantially consistent
with that of the corresponding
-18-
<PAGE> 19
amounts in the audited financial statements included
or incorporated in the Registration Statement and the
Prospectus;
(5) they have performed certain other
specified procedures as a result of which they
determined that certain information of an ac-
counting, financial or statistical nature (which is
limited to accounting, financial or statistical
information derived from the general accounting
records of the Company and its subsidiaries) set
forth in the Registration Statement and the
Prospectus and in Exhibit 12 to the Registration
Statement, including the information included or
incorporated in Items [1, 2, 6, 7 and 11] of the
Company's Annual Report on Form 10-K, incorporated in
the Registration Statement and the Prospectus, and
the information included in the "Management's
Discussion and Analysis of Financial Condition and
Results of Operations" included or incorporated in
the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the
Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any
questions of legal interpretation; and
(6) if unaudited pro forma financial
statements are included or incorporated in the
Registration Statement and the Prospectus, on the
basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified
procedures, inquiries of certain officials of the
Company and the acquired company who have
responsibility for financial and accounting matters,
and proving the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the pro forma financial
statements, nothing came to their attention which
caused them to believe that the pro forma financial
statements do not comply in form in all material
respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of such
statements.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
-19-
<PAGE> 20
(f) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to such Agents and counsel for the Agents,
this Agreement and all obligations of any Agent hereunder may be canceled at any
time by the Agents. Notice of such cancelation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of Simpson Thacher & Bartlett, 425 Lexington Avenue,
New York, NY 10017, on the date hereof.
6. Conditions to the Obligations of a Purchaser. The
obligations of a Purchaser to purchase any Notes will be subject to the accuracy
of the representations and warranties on the part of the Company herein as of
the date of the related Terms Agreement and as of the Closing Date for such
Notes, to the performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and observed and to the
following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of
the Closing Date, to the effect set forth in Section 5(d) (except that
references to the Prospectus shall be to the Prospectus as supplemented
as of the date of such Terms Agreement), (ii) the opinion of counsel
for the Company, dated as of the Closing Date, to the effect set forth
in Section 5(b), (iii) the opinion of Simpson Thacher & Bartlett,
counsel for the Purchaser, dated as of the Closing Date, to the effect
set forth in Section 5(c), and (iv) the letter of Arthur Andersen LLP,
independent accountants for the Company, dated as of the Closing Date,
to the effect set forth in Section 5(e).
-20-
<PAGE> 21
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement and the applicable Terms Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement or such Terms
Agreement and required to be delivered to the Purchaser pursuant to the terms
hereof and thereof shall not be in all material respects reason ably
satisfactory in form and substance to the Purchaser and its counsel, such Terms
Agreement and all obligations of the Purchaser thereunder and with respect to
the Notes subject thereto may be canceled at, or at any time prior to, the
respective Closing Date by the Purchaser. Notice of such cancelation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. (a) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall have the
right to refuse to purchase such Note if, at the Closing Date therefor, any
condition set forth in Section 5 or 6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of Sections 9(b)(i) through (v) shall have occurred (with the judgment of
the Agent which presented the offer to purchase such Note being substituted for
any judgment of a Purchaser required therein) the effect of which is, in the
judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the sale and delivery of such Note (it being understood that under no
circumstance shall any such Agent have any duty or obligation to the Company or
to any such person to exercise the judgment permitted to be exercised under this
Section 7(b) and Section 9(b)).
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each of you, the directors, officers, employees
and agents of each of you and each person who controls each of you within the
meaning of either the Act or the Exchange Act against any and all losses,
-21-
<PAGE> 22
claims, damages or liabilities, joint or several, to which you, they or any of
you or them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Securities as originally filed or in any amendment thereof, or in the
Prospectus or any preliminary Prospectus, or in any amendment thereof 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 agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will 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 any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information relating to
any of you furnished to the Company by any of you specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each of you agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to you, but only with reference to written information relating to
such of you furnished to the Company by such of you specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph of the
cover page, and under the heading "Plan of Distribution", of the Prospectus
Supplement constitute the only information furnished in writing by any of you
for inclusion in the documents referred to in the foregoing indemnity, and you
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this
-22-
<PAGE> 23
Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or
-23-
<PAGE> 24
insufficient to hold harmless an indemnified party for any reason, the Company
and each of you agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company and one or more of you may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and by each
of you from the offering of the Notes from which such Losses arise; provided,
however, that in no case shall any of you be responsible for any amount in
excess of the commissions received by such of you in connection with the sale of
Notes from which such Losses arise (or, in the case of Notes sold pursuant to a
Terms Agreement, the aggregate commissions that would have been received by such
of you if such commissions had been payable). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
each of you shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and of
each of you in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) of the Notes from which such
Losses arise, and benefits received by each of you shall be deemed to be equal
to the total commissions received by such of you in connection with the sale of
Notes from which such Losses arise (or, in the case of Notes sold pursuant to a
Terms Agreement, the aggregate commissions that would have been received by such
of you if such commissions had been payable). Relative fault shall be determined
by reference to whether any alleged untrue statement or omission relates to
information provided by the Company or any of you. The Company and each of you
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), 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. For purposes of this Section 8, each person who controls any
of you within the meaning of the Act or the Exchange Act and each director,
officer, employee and agent of any of you shall have the same rights to
contribution as you and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
-24-
<PAGE> 25
9. Termination. (a) This Agreement will continue in effect
until terminated as provided in this Section 9. This Agreement may be terminated
either by the Company as to any Agent or by any of you insofar as this Agreement
relates to any Agent, by giving written notice of such termination to such Agent
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
the fourth paragraph of Section 2(a), Section 4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for any Note to be purchased thereunder, if prior to
such time (i) there shall have occurred, subsequent to the agreement to purchase
such Note, any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries the
effect of which is, in the judgment of the Purchaser, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or delivery
of such Note, (ii) there shall have been, subsequent to the agreement to
purchase such Note, any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change, (iii)
trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (iv) a banking moratorium
shall have been declared by either Federal or New York State or Ohio State
authorities, or (v) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Purchaser, impracticable or inadvisable to
proceed with the offering or delivery of such Notes as contemplated by the
Prospectus (exclusive of any supplement thereto).
10. Survival of Certain Provisions. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force
-25-
<PAGE> 26
and effect, regardless of any investigation made by or on behalf of you or the
Company or any of the directors, officers, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 4(h) and 8 hereof shall sur-
vive the termination or cancelation of this Agreement. The provisions of this
Agreement (including without limitation Section 7 hereof) applicable to any
purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement. If at the
time of termination of this Agreement any Purchaser shall own any Notes with the
intention of selling them, the provisions of Section 4 shall remain in effect
until such Notes are sold by the Purchaser.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any of you, will be mailed,
delivered or telegraphed and confirmed to such of you, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Star Banc Center, 425 Walnut Street, P.O. Box
1038, Cincinnati, Ohio 45202, (513) 632-4000 attention of the .
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors, the
directors, officers, employees, agents and controlling persons referred to in
Section 8 hereof and, to the extent provided in Section 7, any person who has
agreed to purchase Notes, and no other person will have any right or obligation
hereunder. No purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
13. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of New
York.
-26-
<PAGE> 27
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and you.
Very truly yours,
Star Banc Corporation
By: ______________________________
[Title]
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
[AGENTS]
-27-
<PAGE> 1
EXHIBIT 4(1)
<PAGE> 2
STAR BANC CORPORATION
TO
====================
TRUSTEE
--------------
INDENTURE
DATED AS OF _____________________
--------------
SENIOR DEBT SECURITIES
<PAGE> 3
STAR BANC CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ____________________
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1) ................................ 609
(a)(2) ................................ 609
(a)(3) ................................ Not Applicable
(a)(4) ................................ Not Applicable
(a)(5) ................................ 609
(b) ................................... 608, 610
(c) ................................... Not Applicable
Section 311(a) ................................... 613
(b) ................................... 613
Section 312(a) ................................... 701,702(a)
(b) ................................... 702(b)
(c) ................................... 702(c)
Section 313(a) ................................... 703(a)
(b) ................................... 703(a)
(c) ................................... 703(a)
(d) ................................... 703(b)
Section 314(a) ................................... 704, 1007
(b) ................................... Not Applicable
(c)(1) ................................ 102
(c)(2) ................................ 102
(c)(3) ................................ Not Applicable
(d) ................................... Not Applicable
(e) ................................... 102
Section 315(a) ................................... 601
(b) ................................... 602
(c) ................................... 601
(d) ................................... 601
(e) ................................... 514
Section 316(a) ................................... 101
(a)(1)(A) ............................. 104(h), 502
................................ 512
(a)(1)(B) ............................. 104(h), 513
(a)(2) ................................ Not Applicable
(b) ................................... 508
(c) ................................... 104(h)
Section 317(a)(1) ................................ 503
(a)(2) ................................ 504
(b) ................................... 1003
Section 318(a) ................................... 107
(c) ................................... 107
</TABLE>
<PAGE> 4
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be part of the Indenture.
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties ................................................................ 1
Recitals ............................................................... 1
</TABLE>
ARTICLE ONE
Definitions and Other Provisions
of General Application
<TABLE>
<S> <C> <C>
Section 101. Definitions............................................... 1
Act....................................................... 2
Affiliate................................................. 2
Authorized Newspaper...................................... 2
Bearer Security........................................... 2
Board of Directors........................................ 3
Board Resolution.......................................... 3
Business Day.............................................. 3
Capital Stock............................................. 3
CEDEL or CEDEL S.A........................................ 3
Commission................................................ 3
Company................................................... 3
Company Request and Company Order......................... 3
Corporate Trust Office.................................... 4
corporation............................................... 4
coupon.................................................... 4
Debt Securities........................................... 4
Defaulted Interest........................................ 4
Depositary................................................ 4
Designated Currency....................................... 4
Dollar or $............................................... 4
ECU....................................................... 4
Eligible Instruments...................................... 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 Agent..................................... 5
Global Exchange Date...................................... 5
Global Security........................................... 5
Holder.................................................... 6
Indenture................................................. 6
</TABLE>
i
<PAGE> 6
<TABLE>
<S> <C> <C>
interest.................................................. 6
Interest Payment Date..................................... 6
Maturity.................................................. 6
Officers' Certificate..................................... 6
Opinion of Counsel........................................ 6
Original Issue Discount Security.......................... 6
Outstanding............................................... 7
Paying Agent.............................................. 7
Person.................................................... 7
Place of Payment.......................................... 8
Predecessor Security...................................... 8
Principal Subsidiary Bank................................. 8
Redemption Date........................................... 8
Redemption Price.......................................... 8
Registered Security....................................... 8
Regular Record Date....................................... 8
Remarketing Entity........................................ 8
Repayment Date............................................ 9
Repayment Price........................................... 9
Responsible Officer....................................... 9
Security Register and Security Registrar.................. 9
Special Record Date....................................... 9
Stated Maturity........................................... 9
Subsidiary................................................ 9
Subsidiary Bank........................................... 9
Trust Indenture Act....................................... 9
Trustee................................................... 9
United States............................................. 10
United States Alien....................................... 10
U.S. Government Obligations............................... 10
Voting Stock.............................................. 10
Section 102. Compliance Certificates and Opinions...................... 10
Section 103. Form of Documents Delivered to Trustee.................... 11
Section 104. Acts of Holders........................................... 12
Section 105. Notices, etc., to Trustee and Company..................... 14
Section 106. Notice to Holders; Waiver................................. 14
Section 107. Conflict with Trust Indenture Act......................... 16
Section 108. Effect of Headings and Table of Contents.................. 16
Section 109. Successors and Assigns.................................... 16
Section 110. Separability Clause....................................... 16
Section 111. Benefits of Indenture..................................... 16
Section 112. Governing Law............................................. 17
Section 113. Legal Holidays............................................ 17
Section 114. Counterparts.............................................. 17
</TABLE>
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ARTICLE TWO
Debt Security Forms
<TABLE>
<S> <C> <C>
Section 201. Forms Generally........................................... 17
Section 202. Form of Trustee's Certificate of Authentication........... 18
Section 203. Debt Securities in Global Form............................ 18
ARTICLE THREE
The Debt Securities
Section 301. Amount Unlimited; Issuance in Series...................... 19
Section 302. Denominations............................................. 23
Section 303. Execution, Authentication, Delivery and Dating............ 24
Section 304. Temporary Debt Securities................................. 27
Section 305. Registration; Registration of Transfer
and Exchange.............................................. 30
Section 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities........................................... 36
Section 307. Payment of Interest; Interest Rights Preserved............ 37
Section 308. Persons Deemed Owners..................................... 40
Section 309. Cancellation.............................................. 40
Section 310. Computation of Interest................................... 41
Section 311. Certification by a Person Entitled to Delivery
of a Bearer Security...................................... 41
Section 312. Judgments................................................. 41
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture................... 42
Section 402. Application of Trust Money and Eligible
Instruments............................................... 44
Section 403. Satisfaction, Discharge and Defeasance of
Debt Securities of any Series............................. 44
ARTICLE FIVE
Remedies
Section 501. Events of Default......................................... 47
Section 502. Acceleration of Maturity; Rescission and
Annulment................................................. 49
</TABLE>
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<TABLE>
<S> <C> <C>
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.................................... 50
Section 504. Trustee May File Proofs of Claim.......................... 52
Section 505. Trustee May Enforce Claims without Possession
of Debt Securities or Coupons............................. 53
Section 506. Application of Money Collected............................ 53
Section 507. Limitation on Suits....................................... 54
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest........................... 54
Section 509. Restoration of Rights and Remedies........................ 55
Section 510. Rights and Remedies Cumulative............................ 55
Section 511. Delay or Omission Not Waiver.............................. 55
Section 512. Control by Holders of Debt Securities..................... 55
Section 513. Waiver of Past Defaults................................... 56
Section 514. Undertaking for Costs..................................... 56
Section 515. Waiver of Stay or Extension Laws.......................... 57
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities....................... 57
Section 602. Notice of Default......................................... 58
Section 603. Certain Rights of Trustee................................. 58
Section 604. Not Responsible for Recitals or Issuance of
Debt Securities........................................... 59
Section 605. May Hold Debt Securities or Coupons....................... 60
Section 606. Money Held in Trust....................................... 60
Section 607. Compensation and Reimbursement............................ 60
Section 608. Disqualification; Conflicting Interests................... 61
Section 609. Corporate Trustee Required; Eligibility................... 61
Section 610. Resignation and Removal; Appointment of Successor. 62
Section 611. Acceptance of Appointment by Successor.................... 64
Section 612. Merger, Conversion, Consolidation or Succession
to Business............................................... 66
Section 613. Preferential Collection of Claims Against Company......... 66
Section 614. Authenticating Agent...................................... 66
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses
of Holders................................................ 68
Section 702. Preservation of Information; Communications
to Holders................................................ 69
Section 703. Reports by Trustee........................................ 69
Section 704. Reports by Company........................................ 69
</TABLE>
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
<TABLE>
<S> <C> <C>
Section 801. Company May Consolidate, etc. Only on
Certain Terms............................................. 70
Section 802. Successor Corporation Substituted......................... 71
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent
of Holders................................................ 71
Section 902. Supplemental Indentures with Consent of Holders........... 73
Section 903. Execution of Supplemental Indentures...................... 74
Section 904. Effect of Supplemental Indentures......................... 75
Section 905. Conformity with Trust Indenture Act....................... 75
Section 906. Reference in Debt Securities to Supplemental
Indentures................................................ 75
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest................ 75
Section 1002. Maintenance of Office or Agency........................... 76
Section 1003. Money for Debt Securities Payments to Be Held
in Trust.................................................. 77
Section 1004. Purchase of Debt Securities by Company or
Subsidiary................................................ 79
Section 1005. Existence................................................. 79
Section 1006. Restrictions Upon Sale or Issuance of Capital
Stock of Certain Subsidiary Banks......................... 79
Section 1007. Payment of Additional Amounts............................. 81
Section 1008. Officers' Certificate as to Default....................... 82
Section 1009. Waiver of Certain Covenants............................... 82
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101. Applicability of Article.................................. 82
Section 1102. Election to Redeem; Notice to Trustee..................... 83
Section 1103. Selection by Trustee of Debt Securities to be
Redeemed.................................................. 83
Section 1104. Notice of Redemption...................................... 84
Section 1105. Deposit of Redemption Price............................... 85
</TABLE>
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<TABLE>
<S> <C> <C>
Section 1106. Debt Securities Payable on Redemption Date................ 85
Section 1107. Debt Securities Redeemed in Part.......................... 86
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.................................. 86
Section 1202. Satisfaction of Sinking Fund Payments with
Debt Securities........................................... 87
Section 1203. Redemption of Debt Securities for Sinking Fund............ 88
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article.................................. 88
Section 1302. Repayment of Debt Securities.............................. 88
Section 1303. Exercise of Option; Notice................................ 89
Section 1304. Election of Repayment by Remarketing Entities............. 90
Section 1305. Securities Payable on the Repayment Date.................. 90
ARTICLE FOURTEEN
Meetings of Holders of Debt Securities
Section 1401. Purposes for Which Meetings May Be Called................. 91
Section 1402. Call, Notice and Place of Meetings........................ 91
Section 1403. Persons Entitled to Vote at Meetings...................... 92
Section 1404. Quorum; Action............................................ 92
Section 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings................................... 93
Section 1406. Counting Votes and Recording Action of Meetings........... 94
ARTICLE FIFTEEN
Defeasance
Section 1501. Termination of Company's Obligations...................... 95
Section 1502. Repayment to Company...................................... 97
Section 1503. Indemnity for Eligible Instruments........................ 97
</TABLE>
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<TABLE>
<S> <C>
Testimonium ........................................................... 98
Signature and Seals ................................................... 98
Acknowledgements ...................................................... 99
Exhibit A ............................................................. A-1
Exhibit B ............................................................. B-1
</TABLE>
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<PAGE> 12
INDENTURE (the "Indenture") dated as of ___________, between STAR BANC
CORPORATION, an Ohio corporation (hereinafter called the "Company"), having its
principal place of business at STAR BANC CENTER, 425 Walnut Street, P.O. Box
1038, Cincinnati, Ohio 45202 and _______________________________, a national
banking association (hereinafter called the "Trustee"), having its Corporate
Trust Office at __________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds and other evidences of indebtedness (herein called the "Debt
Securities").
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders of such Debt Securities or of any such
series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust
Indenture Act, either directly or by reference therein, as in force at
the date as of which
<PAGE> 13
this instrument was exercised, except as provided in Section 905, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar impact refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"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.
"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.
"Bearer Security" means any Debt Security established pursuant to
Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
2
<PAGE> 14
"Board of Directors" means either the board of directors of the
Company, or the executive or any other committee of that board duly authorized
to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment, means
any day which is not a Saturday or Sunday and which is not a legal holiday or a
day on which banking institutions or trust companies in that Place of Payment
are authorized or obligated by law or executive order to close.
"Capital Stock" means, as to shares of a corporation, outstanding
shares of stock of any class, whether now or hereafter authorized, irrespective
of whether such class shall be limited to a fixed sum or percentage in respect
of the rights of the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary liquidation, dissolution or winding up
of such corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the
3
<PAGE> 15
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President (any references to a Vice President of the Company herein shall be
deemed to include any Vice President of the Company whether or not designated by
a number or word or words added before or after the title "Vice President"), the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
Secretary or an Assistant Secretary of the Company or by another officer of the
Company duly authorized to sign by a Board Resolution, and delivered to the
Trustee.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered.
The term "corporation" includes corporations, associations, companies
and business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Default" means any Event of Default and any default of the type set
forth in clauses (1) through (5) of Section 503.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person (which person
shall be a clearing agency registered under the Securities Exchange Act of 1934,
as amended) designated as Depositary by the Company pursuant to Section 301
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Debt Securities
of any such series shall mean the Depositary with respect to the Debt Securities
of that series.
"Designated Currency" has the meaning specified in Section 312.
"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.
4
<PAGE> 16
"Eligible Instruments" means U.S. Government Obligations.
"Euroclear" means Morgan Guarantee 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 501.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 301.
"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 Debt
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 Debt Securities denominated
in ECU, and other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301, 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 Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or part
of a series of Debt Securities in accordance with Section 303(c).
5
<PAGE> 17
"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 a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented, amended or restated by or pursuant to one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
The term "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", with respect to any Debt Security, means the
Stated Maturity of an installment of interest on such Debt Security.
"Maturity", when used with respect to any Debt Security, means the date
on which the principal of such Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be counsel for the
Company, or who may be other counsel acceptable to the Trustee, which is
delivered to the Trustee.
"Original Issue Discount Security" means any Debt 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 502.
6
<PAGE> 18
"Outstanding", when used with respect to Debt Securities means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Debt
Securities and any coupons appertaining thereto; provided, however,
that if such Debt Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Debt Securities in exchange for or in lieu of which
other Debt Securities have been authenticated and other than any such
securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such securities are held by a
bona fide purchaser in whose hands such securities are valid
obligations of the Company delivered, or which have been paid,
pursuant to this Indenture; and
(iv) Securities which have been defeased pursuant to Section
1501;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of a Debt Security
denominated on one or more Foreign Currencies or currency units shall be the
Dollar equivalent, determined in the manner provided as contemplated by Section
301 on the date of original issuance of such Debt Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent on the date of original issuance of such Debt Security of the amount
determined as provided in clause (i) above) of such Debt Security, and (iii)
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust,
7
<PAGE> 19
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Debt Securities of
any series means any place where the principal of (and premium, if any) and
interest on the Debt Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Principal Subsidiary Bank" means any Subsidiary Bank at the time
having total assets as set forth in its most recent statement of condition equal
to more than 10% of the total consolidated assets of the Company and its
Subsidiaries determined on a consolidated basis from the Company's most recent
financial statements filed with the Commission pursuant to the Securities
Exchange Act of 1934.
"Redemption Date", when used with respect to any Debt 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 Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of Registered
Securities established pursuant to Section 201 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Remarketing Entity", when used with respect to Debt 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
Debt Securities.
8
<PAGE> 20
"Repayment Date", when used with respect to any Debt 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 Debt 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 assigned by it to administer its corporate trust matters.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
or a coupon representing such installment of interest as the fixed date on which
the principal of such Debt Security or such installment is due and payable.
"Subsidiary" means any corporation more than 50% of the outstanding
shares of Voting Stock, except for directors' qualifying shares, of which shall
at the time be owned, directly or indirectly, by the Company or by one or more
of the Subsidiaries, or by the Company and one or more other Subsidiaries.
"Subsidiary Bank" means any commercial bank or trust company organized
in the United States under Federal or state law, at least a majority of the
shares of the Voting Stock of which shall at the time be owned, directly or
indirectly, by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
"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
9
<PAGE> 21
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Debt
Securities of any series shall mean the Trustee with respect to Debt Securities
of that series.
"United States" means the United States of America (including the
District of Columbia) and its possessions which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island, and the Northern Mariana
Islands.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more 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.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case are not callable or redeemable at the
option of the issuer thereof.
"Voting Stock", as applied to the stock (or the equivalent thereof) of
any corporation, means stock (or the equivalent thereof) of any class or
classes, however designated, having ordinary voting power for the election of a
majority of the directors of such corporation, other than stock (or such
equivalent) having such power only by reason of the happening of a contingency.
SECTION 102. 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 (other than the delivery of any
Debt Security to the Trustee for authentication pursuant to Section 303), the
Company shall furnish to the Trustee, if so requested by 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
10
<PAGE> 22
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definition
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is 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
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the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinions or representations
with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Debt 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 Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt
Securities duly called and held in accordance with the provisions of Article
Fourteen, 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 Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) 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 Debt Securities shall be proved in the
manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
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(d) 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, banker 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 in the amount and with the serial numbers
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.
(e) 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 .
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debt Security shall bind every future
holder of the same Debt Security and the Holder of every Debt Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, suffered or omitted by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debt Security.
(g) For purposes of determining the principal amount of Outstanding
Debt Securities of any series of Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal
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amount of the Outstanding Debt Securities of such series and (ii) each Debt
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 Debt Security in the currency in which such Debt
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 Debt 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
301).
(h) The Company may set a record date for purposes of determining the
identity of Holders of Debt Securities of any series entitled to vote or consent
to any action by vote or consent authorized or permitted by Section 512 or
Section 513. 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 Debt Securities furnished to the Trustee pursuant to Section 701 prior to
such solicitation.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided), if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Secretary at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1)
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such notice shall be sufficiently given to Holders of Registered Securities if
in writing and mailed, first-class postage prepaid, to each Holder of a
Registered Security affected by such event, at such Holder's 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; and
(2) such notice shall be sufficiently given to Holders of Bearer Securities by
publication thereof in an Authorized Newspaper in The City of New York and, if
the Debt Securities of such series are then listed on The International Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, in London, and, if the Debt Securities of such series
are then listed on the Luxembourg Stock Exchange and such stock exchange shall
so require, in Luxembourg and, if the Debt Securities of such series are then
listed on any other stock exchange outside the United States and such stock
exchange shall so require, in any other required city outside the United States
or, if not practicable, in Europe on a Business Day at least twice, the first
such publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or for any other reason, it shall be impossible or impracticable to
mail notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture or of the Debt Securities, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where notice to
Holders of Registered Securities is to be given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security 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 by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither 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.
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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.
Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act 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 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debt Securities or
coupons 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or coupons, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Paying Agent and the Holders any benefit or any legal
or equitable right, remedy or claim under this Indenture.
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SECTION 112. Governing Law.
This Indenture and the Debt Securities and coupons shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity of any Debt Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or
of the Debt Securities or coupons) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity, and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date, Repayment Date or
Stated Maturity, as the case may be.
SECTION 114. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
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 Debt Securities or coupons, as evidenced by their
signatures on the Debt Securities or coupons. If the form of Debt Securities of
any series or
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coupons (including any such Global Security) is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 or the authentication and delivery of such Debt
Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt
Securities in bearer form other than Debt Securities in temporary or permanent
global form shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
[________________________________]
as Trustee
By_______________________________
Authorized Officer
SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in part in
global form, as specified as contemplated by Section 301, then, notwithstanding
clause (10) of Section 301 and the provisions of Section 302, such Global
Security shall represent such of the Outstanding Debt Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amounts of Outstanding Debt Securities represented thereby shall be made in
such manner and
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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 303
or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to
any Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent global form.
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of
the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of the series
pursuant to Section 304, 305, 306, 906, 1107 or 1303 and except for any
Debt Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder);
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(3) the date or dates on which the principal and premium, if
any, of the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of
the series shall bear interest, or the method or methods by which such
rate or rates may be determined, 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 Registered Security on any Interest Payment Date and the
circumstances, if any, in which the Company may defer interest
payments;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest on
Debt Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, Debt Securities of the series may be surrendered for exchange
and notices and demands to or upon the Company in respect of the Debt
Securities of the series and this Indenture may be served and where
notices to Holders pursuant to Section 106 will be published;
(6) if applicable, the period or periods within which or the
date or dates on which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt 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 Debt Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) whether Debt Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether Debt
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 Debt Security of such series of like tenor and
term to be issued;
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(9) whether the Debt Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities and,
in such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(10) if Debt Securities of the series are to be issuable
initially in the form of a temporary Global Security, the circumstances
under which the temporary Global Security can be exchanged for
definitive Debt Securities and whether the definitive Debt Securities
will be Registered and/or Bearer Securities and will be in global form
and whether interest in respect of any portion of such Global Security
payable in respect of an Interest Payment Date prior to the Global
Exchange Date shall be paid to any clearing organization with respect
to a portion of such Global Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(11) whether, and under what conditions, additional amounts
will be payable to Holders of Debt Securities of the series pursuant to
Section 1006;
(12) the denominations in which any Registered Securities of
the series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof, and the denominations in which any
Bearer Securities of such series shall be issuable, if other than the
denomination of $5,000;
(13) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(14) the currency or currencies of denomination of the Debt
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;
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(15) the currency or currencies in which payment of the
principal of (and premium, if any) and interest on the Debt 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 Exchange
Rate Agent;
(16) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be
determined with reference to an index based on a currency or currencies
other than that in which the Debt Securities are denominated or
designated to be payable, the manner in which such amounts shall be
determined;
(17) if payments of principal of (and premium, if any) or
interest on the Debt Securities of the series are to be made in a
Foreign Currency other than the currency in which such Debt Securities
are denominated, the manner in which the Exchange Rate with respect to
such payments shall be determined or if the Exchange Rate is to be
determined otherwise than as provided in Section 101;
(18) any Events of Default with respect to Debt Securities of
such series, if not set forth herein;
(19) any other covenant or warranty included for the benefit
of the Debt Securities of the series in addition to (and not
inconsistent with) those set forth herein for the benefit of Debt
Securities of all series, or any other covenant or warranty included
for the benefit of Debt Securities of the series in lieu of any
covenant or warranty set forth herein for the benefit of Debt
Securities of all series, or any provision that any covenant or
warranty set forth herein for the benefit of Debt Securities of all
series shall not be for the benefit of Debt Securities of such series,
or any combination of such covenants, warranties or provisions and the
applicability, if any, of the provisions of Section 1008 to such
covenants and warranties;
(20) the terms and conditions, if any, pursuant to which the
Company's obligations under this Indenture may be terminated through
the deposit of money or Eligible Instruments as provided in Articles
Four and Fifteen;
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(21) the Person or Persons who shall be Security Registrar for
the Debt Securities of such series if other than the Trustee, and the
place or places where the Security Register for such series shall be
maintained and the Person or Persons who will be the initial Paying
Agent or Agents, if other than the Trustee; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series 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
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt 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 or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denominations of $5,000.
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SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by
its Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt Securities and coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities or coupons of any series or did not hold such offices at the
date of such Debt Securities or coupons.
(b) At any time and from time to time after the execution and delivery
of this Indenture, Debt Securities of any series may be executed by the Company
and delivered to the Trustee for authentication, and, except as otherwise
provided in this Article Three, shall thereupon be authenticated and delivered
by the Trustee upon Company Order, without any further action by the Company;
provided, however, that, in connection with its original issuance or any sale
during the "restricted period" as defined in Section 1.163-5(c)(2)(i)(b)(7) of
the U.S. Treasury Regulations, a Bearer Security may be delivered only outside
the United States and, except in the case of a temporary Global Security, only
if the Company or its agent shall have received the certification required
pursuant to Sections 304(b)(iii) and (iv), unless such certification shall have
been provided earlier pursuant to section 304(b)(v) hereof, and only if the
Company has no reason to know that such certification is false.
To the extent authorized in or pursuant to a Board Resolution and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee
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thereafter), the Company shall deliver to the Trustee (i) the certificates
called for under Sections 201 and 301 hereof and (ii) an Opinion of Counsel
described in the next sentence.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating
thereto;
(iii) an Officers' Certificate setting forth the form and
terms of the Debt Securities of such series and coupons, if any,
pursuant to Sections 201 and 301 and stating that all conditions
precedent provided for in this Indenture relating to the issuance of
such Debt Securities have been complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and
coupons, if any, has been established in or pursuant to a
Board Resolution or by a supplemental indenture as permitted
by Section 201 in conformity with the provisions of this
Indenture;
(B) that the terms of such Debt Securities and
coupons, if any, have been established in or pursuant to a
Board Resolution or by a supplemental indenture as permitted
by Section 301 in conformity with the provisions of this
Indenture; and
(C) that such Debt Securities and coupons, if any,
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 binding obligations of the Company, enforceable in
accordance with their terms, subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally and the application of general principles
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of equity and except further as enforcement thereof may be
limited by (i) requirements that a claim with respect to any
Debt Securities denominated other than in Dollars (or a
Foreign Currency or currency unit judgment in respect of such
claim) be converted into Dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the
making of payments in Foreign Currencies or currency units or
payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the
Debt Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order 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 Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered 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.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 303 if the issuance of such Debt
Securities will adversely affect the Trustee's own rights, duties or immunities
under the Debt Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel at the time
of issuance of each Debt Security, but such Opinion of Counsel, with appropriate
modifications, may instead be delivered at or prior to the time of the first
issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive
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evidence, and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 306, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
Notwithstanding the foregoing, if any Debt 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 Debt Security to the Trustee
for cancellation as provided in Section 309 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Debt Security or portion thereof has never
been issued and sold by the Company, for all purposes of this Indenture such
Debt Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 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
Securities Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and upon receipt of documents required by
Sections 301 and 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
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 Debt Securities may determine, as evidenced by their
signatures on such Debt Securities. In the case of Debt Securities of any series
issuable as Bearer Securities, such temporary Debt Securities may be in global
form, representing all or any part of the Outstanding Debt Securities of such
series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global
form, if temporary Debt Securities of any series
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are issued, the Company will cause definitive Debt Securities of such
series to be prepared without unreasonable delay. After the preparation
of definitive Debt Securities of such series, the related temporary
Debt Securities shall be exchangeable for such definitive Debt
Securities upon surrender of the temporary Debt Securities of such
series at the office or agency of the Company in the Place of Payment
for such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debt 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 Debt Securities of the same series of
like tenor and terms and 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 Bearer Security shall be delivered in exchange for a Bearer
Security only in compliance with the conditions set forth in Section
305. Until so exchanged, the temporary Registered Securities of any
series shall in all respects be entitled to the same benefits under
this Indenture as defined Registered Securities of such series.
(ii) If Debt Securities of any series are issued in temporary
global form, any such temporary Global Security shall, unless otherwise
provided pursuant to section 301, to be delivered to the Depositary for
the benefit of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Debt Securities (or to such
other accounts as they may direct).
(iii) Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms of, any
such temporary Global Security (the "Global Exchange Date"), the
Company shall deliver definitive Debt Securities to the Trustee or the
agent appointed by the Company pursuant to Section 301 to effect the
exchange of the temporary Global Security for definitive Debt
Securities (the "Global Exchange Agent"), in an aggregate principal
amount equal to the principal amount of such temporary Global Security,
executed by the Company. On or after the Global Exchange Date, such
temporary Global Security shall be surrendered by the Depositary to the
Global Exchange Agent, to be exchanged, in whole or from time to time
in part, for definitive Debt Securities without charge and the Trustee
or the Global Exchange Agent, if authorized by the Trustee pursuant to
Section 614,
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shall authenticate and deliver, in exchange for each portion of such
temporary Global Security, an equal aggregate principal amount of
definitive Debt Securities of the same series of authorized
denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a part
of such temporary Global Security for definitive Debt Securities, the
portion of the principal amount and any interest thereon so exchanged
shall be endorsed by the Global Exchange Agent on a schedule to such
temporary Global Security, whereupon the principal amount and interest
payable with respect to such temporary Global Security shall be reduced
for all purposes by the amount so exchanged and endorsed. The
definitive Debt Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form,
global registered form or global bearer form, or any combination
thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, in the case of the exchange of
the temporary Global Security for definitive Bearer Securities
(including a definitive Global Bearer Security), upon such presentation
by the Depositary, such temporary Global Security shall be accompanied
by a certificate signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and
a certificate 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 set forth in Exhibit B to this Indenture, unless such
certificate(s) shall have been provided earlier pursuant to section
304(b)(v) hereof; and provided, further, that definitive Bearer
Securities (including a definitive Global Bearer Security) shall be
delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of
a series in a temporary Global Security shall be exchanged for
definitive Debt Securities of the same series and of like tenor and
terms following the Global Exchange Date when the account holder
instructs Euroclear or CEDEL S.A., as the case may be, to request such
exchange on such account holder's behalf and, in the case of the
exchange of the temporary Global Security for definitive Bearer
Securities (including a definitive Global Bearer Security), unless such
certificate(s) shall have been provided earlier pursuant to Section
304(b)(v) hereof, the account holder delivers to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form set
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<PAGE> 41
forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, 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 Global Exchange Agent, any authenticating agent
appointed for such series of Debt 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
Debt Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take
delivery of such definitive Debt Securities in person at the offices of
Euroclear and CEDEL S.A. Definitive Debt 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.
(v) Until exchanged in full as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt
Securities of the same series and of like tenor and terms authenticated
and delivered hereunder, except that interest payable on a temporary
Global Security on an Interest Payment Date shall be payable to
Euroclear and CEDEL S.A. on such Interest Payment Date only if there
has been delivery by Euroclear and CEDEL S.A. to the Global Exchange
Agent of a certificate or certificates in the form set forth in Exhibit
B to this Indenture dated no earlier than the first Interest Payment
Date, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global 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 set forth in Exhibit A-1
and, if applicable, A-2 to this Indenture dated no earlier than the
first Interest Payment Date. 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 Global Exchange Agent which, upon
expiration of two years after such Interest Payment Date, shall repay
such interest to the Company in accordance with Section 1003.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies to
be maintained by the Company in accordance
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with the provisions of this Section 305 and Section 1002, with respect to the
Debt Securities of each series which are Registered Securities, a register
(herein 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 of transfers of Registered
Securities. Pursuant to Section 301, the Company shall appoint, with respect to
Debt Securities of each series which are Registered Securities, a "Security
Registrar" for the purpose of registering such Debt Securities and transfers and
exchanges of such Debt Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of like tenor and terms and aggregate principal
amount, and of a like Stated Maturity upon surrender of the Registered
Securities to be exchanged at such office or agency. Whenever any Registered
Securities are surrendered for exchange, the Company shall execute and the
Trustee shall make available for delivery, the Registered Securities which the
Holder is entitled to receive. Bearer Securities may not be delivered in
exchange for Registered Securities.
If Debt Securities of any series are issuable as both Registered
Securities and Bearer Securities then, at the option of the Holder and upon
request conferred in writing, Registered Securities or Bearer Securities of any
series may be issued in exchange for Bearer Securities (except as otherwise
specified as contemplated by Section 301 with respect to a Bearer Security in
global form) of the same series, of any authorized denominations and of like
tenor and terms, aggregate principal amount and of a like Stated Maturity, 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 and the Trustee in an amount equal to the face
amount of such missing coupon or coupons, or
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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 such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor and terms after the close of business at such office or agency of (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 of
payment, as the case may be and interest will not be payable 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 terms
of this Indenture. The Company shall execute, and the Trustee shall authenticate
and make available for delivery, the Registered Security or Securities which the
Holder making the exchange is entitled to receive.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Debt Securities of such series or if at any time the Depositary for the
Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt
Securities of such series. If a successor Depositary for the Debt Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301(9) shall no longer be effective with respect to
the Debt Securities of such series and the Company will execute, and the
Trustee, upon receipt of
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a Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver, Debt Securities of
such series 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 Debt 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 Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and 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 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without charge to any Holder,
(a) to each Person specified by such Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and
of any authorized denominations 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 a denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the
aggregate principal amount of Debt Securities delivered to Holders
thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or
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Bearer Securities, as shall be specified by the beneficial owner thereof, if the
Debt 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 unless the Company or its agent shall have received
from the person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names 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. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Debt Securities are so registered. The Trustee shall deliver Bearer
Securities issued in exchange for a Global Security pursuant to this Section to
the persons, 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; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of
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transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed, by the Holder thereof or such Holder's attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer, registration of transfer or exchange of Debt
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.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any particular series to be redeemed for a
period of fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Debt Securities
of such series selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Registered Security so selected for redemption in whole or in
part, except the unredeemed portion of such Registered Security being redeemed
in part, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
like tenor and terms of that series, provided that such Registered Security
shall be simultaneously surrendered 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; neither 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 thereafter 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.
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
United States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupon, if any, appertaining to
such destroyed, lost or stolen Debt Security or to the Debt Security to which
such destroyed, lost or stolen coupon appertains; provided, however, that any
such new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; provided, however, that payment of principal of (and premium, if any)
and any interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States; and provided, further, that, with respect to any such coupons, interest
represented thereby (but not any additional amounts payable as provided in
Section 1006), shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons 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 and printing
expenses) connected therewith.
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Every new Debt Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security,
or in exchange for a Bearer Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Debt Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debt Securities of that 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 Debt Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided pursuant to Section 301, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Registered Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest. 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 in a Place of
Payment for such series) 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 of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted
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Interest") shall forthwith cease to be payable to the registered 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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (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 of
such series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money and/or,
to the extent such Debt Securities are denominated and payable in
Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no
tax liability will be imposed upon the Trustee or the Holder of such
Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the
Trustee, without investment) be 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 and/or Eligible Instruments
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 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the Company shall
furnish the Trustee with a list, or shall make arrangements
satisfactory to the Trustee with respect thereto, of the names and
addresses of, and principal amounts of Registered Securities of such
series held by, the Holders appearing on the Security Register at the
close of business on such Special Record Date. In the name and at the
expense of the Company, the Trustee 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 of Registered
Securities
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of such series 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 the Registered Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2). 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 for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of 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.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Registered Securities may be listed, and upon such notice as maybe
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Subject to the limitations set forth in Section 1002, 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 1002.
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of Debt Securities,
all Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture, shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company unless by a Company Order the
Company shall direct that the cancelled Debt Securities or coupons be returned
to it.
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SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to Delivery of a Bearer
Security.
Whenever any provision of this Indenture or a Debt Security
contemplates that certification by given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall
not unreasonably be withheld.
SECTION 312. Judgments.
The Company may provide, pursuant to Section 301, for the Debt
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 301, (a)
the obligation, if any, of the Company to pay the principal of (and premium, if
any) and interest on the Debt 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 301 is of the essence and
agrees that judgments in respect of such Debt 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 Debt 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
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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.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Debt Securities herein expressly provided for and rights to receive payments of
principal and interest thereon and any right to receive additional amounts, as
provided in Section 1006) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture when
(1) either
(A) all Debt Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered in exchange for
Registered Securities and maturing after such exchange, surrender of
which is not required or has been waived as provided in Section 305,
(ii) Debt Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306,
(iii) coupons appertaining to Bearer Securities called for redemption
or surrendered for repayment and maturing after the relevant Redemption
Date or Repayment Date, as appropriate, surrender of which has been
waived as provided in Section 1106 or 1303 and (iv) Debt Securities and
coupons for whose payment money and/or Eligible Instruments have
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 1003) have been delivered to the
Trustee cancelled or for cancellation; or
(B) all such Debt Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
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(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice by the Trustee in the name, and at the expense, of
the Company.
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due
(and without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment) be
sufficient to pay and discharge the entire indebtedness on such Debt
Securities and coupons of such series for principal (and premium, if
any) and interest, and any mandatory sinking fund, repayment or
analogous payments thereon, on the scheduled due dates therefor to the
date of such deposit (in the case of Debt Securities and coupons which
have become due and payable) or to the Stated Maturity or Redemption
Date, if any, and all Repayment Dates (in the case of Debt Securities
repayable at the option of the Holders thereof); provided, however,
that in the event a petition for relief under the Bankruptcy Reform Act
of 1978 or a successor statute is filed with respect to the Company
within 91 days after the deposit, the obligations of the Company under
the Indenture with respect to the Debt Securities of such series shall
not be deemed terminated or discharged, and in such event the Trustee
shall be required to return the deposited money and Eligible
Instruments to the Company.
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with, and
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(4) in the case of a deposit and discharge pursuant to subclause (B) of
clause (1) of this Section the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Company has received from or there has been
published by the Internal Revenue Service a ruling to the effect that Holders of
the Debt Securities of the series will not recognize income, gain or loss for
U.S. Federal income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money and Eligible Instruments.
Subject to the provisions of the last paragraph of Section 1003, all
money and Eligible Instruments deposited with the Trustee pursuant to Section
401, 403 or 1501 shall be held in trust and such money and the principal and
interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee.
SECTION 403. Satisfaction, Discharge and Defeasance of Debt Securities
of any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Debt Securities of any series, then, notwithstanding Section 401,
(i) the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debt Securities of any such series and
related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect
(except as to the rights of Holders of Debt Securities to receive, from the
trust fund described in subparagraph (1) below, payment of (x) the principal of
(and premium, if any) and any installment of principal of (and premium, if any)
or interest on such Debt Securities and related coupons on the Stated Maturity
of such principal (and premium, if any) or installment of principal (and
premium, if any) or interest or (y) any mandatory sinking fund payments or
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analogous payments applicable to the Debt Securities of that series on that day
on which such payments are due and payable in accordance with the terms of this
Indenture and of such Debt Securities, the Company's obligations with respect to
such Debt Securities under Sections 304, 305, 306, 1002, 1003 and 1006 and the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including those under Section 607 hereof); and (iii) the Trustee, at the expense
of the Company, shall, upon Company Order, execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities of such
series and related coupons, with reference to this Section 403, the
Company has deposited or caused to be deposited with the Trustee
irrevocably, as trust funds in trust, money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due
(and without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of such Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment) be
sufficient to pay and discharge (i) the principal of (and premium, if
any) and interest on the Outstanding Debt Securities of that series and
related coupons on the Stated Maturity of such principal or interest
and (ii) any mandatory sinking fund payments or analogous payments
applicable to Debt Securities of such series on the date on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Debt Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable with
respect to the Outstanding Debt Securities of such series and related coupons;
(3) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
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(4) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and
be continuing on the date of such deposit and no Event of Default under
Section 501(6) or Section 501(7) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 501(6) or Section 501(7) shall have occurred and be
continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (b)
since the date of this Indenture there has been a change in applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of Debt
Securities and related coupons of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred;
(6) if the Debt Securities of that series are then listed on
any domestic or foreign securities exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that such
deposit, defeasance and discharge will not cause such Debt Securities
to be delisted; and
(7) 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 the entire indebtedness of all Outstanding Debt Securities
and related coupons have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow or
trust agreement shall provide therefor and the Company shall make such
arrangements as are
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satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 607, and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive with respect to such series of Debt Securities.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Debt
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) the entry by a court or a governmental authority having
jurisdiction in the premises of (A) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or substantially
all of its assets or ordering the winding up or liquidation of the
affairs of the Company, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for
a period of 60 consecutive days; or
(2) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
substantially all of its assets; or
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(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of Debt Securities of
a series other than such series), and continuance of such default or
breach for a period of 30 days after there as been given by registered
or certified mail, to the Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder, or
(5) the failure of the Company, subject to the provisions of
Section 1008, to observe and perform the covenants contained in Section
1005; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or
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any such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default, if any, provided with respect
to Debt Securities of such series specified as contemplated by Section
301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series at
the time Outstanding occurs and its continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of Outstanding
Debt Securities of such series may declare the principal amount (or, if the Debt
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of and
all accrued but unpaid interest on all the Debt Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by such Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt
Securities of such series and any related coupons,
(B) the principal of (and premium, if any, on) any
Debt Securities of such series which have become due otherwise
than by such declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such Debt
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on each
Debt Security and any related coupons at the rate or rates
prescribed therefor in such Debt Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expense,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Debt Securities of
such series, other than the non-payment of the principal of Debt
Securities of such series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
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(1) default is made in the payment of any installment of
interest on any Debt Security or any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days,
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) default is made on any sinking fund payment or analogous
obligation when the same becomes due pursuant to the terms of the Debt
Securities or any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon
overdue installments of interest, at the rate or rates prescribed therefor in
such Debt Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such 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 of final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and coupons
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and coupons, wherever situated.
If a Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities of such
series and any related coupons 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.
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SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceedings or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Debt Securities of such series and any appurtenant
coupons, to file such other papers or documents as may be necessary
or advisable and to take any and all other actions under the Trust
Indenture Act in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.
All rights of action and claims under this Indenture or the Debt
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities or coupons or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Debt
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or coupons, 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 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
and any coupons, in respect of which or for the benefit of which such
money has been collected ratably, without preference or priority of any
kind, according to the amounts due and payable on such Debt Securities
and any coupons for principal (and premium, if any) and interest,
respectively. The Holders of each series of Debt 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 Debt
Securities and matured but unpaid interest on such series of Debt
Securities in the currency in which such series of Debt Securities is
denominated into Dollars at the Exchange Rate as of the date of
declaration of acceleration of the Maturity of the Debt Securities; and
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THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Securities 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
(1) such Holder has previously given written notice to the
Trustee of a continuing Default with respect to the Debt Securities of
such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or coupon shall have the right which is absolute and
unconditional to receive payment of
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the principal of (and premium, if any) and (subject to Section 307) interest on
such Debt Security or payment of such coupon on the respective Stated Maturity
or Maturities expressed in such Debt Security or coupon (or, in the case of
redemption or repayment, on the Redemption Date or the Repayment Date, as the
case may be) and to institute suit for the enforcement of any such payment, and
such right shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debt
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 512. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right
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to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceedings so directed
would be unjustly prejudicial to the Holders of Debt Securities of such
series not joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund or analogous obligation with respect to the Debt
Securities of such series, or
(2) 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 Debt Security of such series or coupons
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 this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or coupon by his acceptance thereof shall
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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 a due regard to the merits and good faith of the
claims or defenses made by such party litigant, but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Debt Securities of any series,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Debt Security or the
payment of any coupons on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or coupon (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date, as the case may
be).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law whenever 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 benefits or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided in
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers,
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if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section .
SECTION 602. Notice of Default.
If a default occurs hereunder with respect to Debt Securities of any
series and is not cured or waived, the Trustee shall transmit by mail to all
Holders of Debt Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 501(4) with respect to Debt
Securities of such series no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, a Default with respect to Debt Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any
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action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of such series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee, reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney,
other than any such books or records containing information as to the affairs of
the customers of the Company or any of its subsidiaries; provided that the
Trustee may examine such books and records relating to customers to the extent
that such books and records contain information as to any payments made to such
customers in their capacity as Holders of Debt Securities; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying
Agent shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any of them.
SECTION 604. Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility
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for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities of any series or any
coupons. The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof. The Trustee shall not be
responsible for and makes no representations to the Company's ability or
authority to issue Bearer Securities or the lawfulness thereof.
SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Debt Securities and coupons, and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law. Neither
the Trustee nor any Paying Agent shall be under any liability for interest on
any money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) 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);
(2) 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
(3) 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
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of or in connection with the acceptance or administration of this trust
or performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a claim prior to the Debt Securities and any
coupons upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any)
or interest on particular Debt Securities or any coupons.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
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examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section , it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
with respect to any series of Debt Securities and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect
to any series of Debt Securities or a decree or order for relief by a
court having jurisdiction in the premises shall have been entered in
respect of the Trustee in an involuntary case under the Federal
bankruptcy laws,
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as now or hereafter constituted, or any other applicable Federal or
State bankruptcy, insolvency or similar law; or a decree or order by a
court having jurisdiction in the premises shall have been entered for
the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator or other similar official of the Trustee or of
its property or affairs, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator or other similar
official of the Trustee or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee for the Debt
Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Debt Securities, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Debt
Securities or one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt Securities of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor
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Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Debt Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Debt Securities of any series shall
have been so appointed by the Company or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona fide Holder of a
Debt Security of such series for at least six months may, subject to Section
514, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
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
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, 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 and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor Trustee
with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee
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upon payment of its charges and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in 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 Debt Securities of that or those
series to which the appointment of such successor Trustee relates; but, on the
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the executing or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debt Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company (or any other obligor upon
the Debt Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding collection of claims against the Company (or any
such other obligor).
SECTION 614. Authenticating Agent.
The Trustee shall upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication on behalf of the Trustee by an
authenticating agent and a certificate of authentication executed on behalf of
the Trustee by an authenticating agent.
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Each authenticating agent must be acceptable to the Company and must be a
corporation organized and doing business under the laws of the United States or
of any State, having a combined capital surplus of at least $50,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by Federal or State authorities or the equivalent foreign authority
in the case of an authenticating agent who is not organized and doing business
under the laws of the United States or of any State thereof or the District of
Columbia.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or
more series of Debt Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
any authenticating agent with respect to one or more series of Debt Securities
by giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee promptly may
appoint a successor authenticating agent. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall
be applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
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This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
[_______________________________________________ ]
By _______________________________________________
As Authenticating Agent for the Trustee
By _______________________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not more than 15 days after the Regular
Record Date in respect of the Debt Securities of such series or on May
15 and November 15 of each year with respect to each series of Debt
Securities for which there are no Regular Record Dates, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities as of such Regular Record Date
or May 1 or November 1, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or Security Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished. The Trustee shall preserve
for at least two years the names and addresses of Holders of Bearer Securities
filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debt Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, 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 any disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Debt Securities pursuant to this Indenture
and at any other time required by the Trust Indenture Act, the Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture and such other matters as may be required pursuant to the Trust
Indenture Act in the manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any Debt
Securities of such series are listed, with the Commission and also with the
Company. The Company will notify the Trustee when any series of Debt Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders such information, documents
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and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the time and in the manner pursuant to such Act;
provided that such information, documents or reports required to be filed with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any political
subdivision thereof or any State or the District of Columbia thereof
and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest (including all additional amounts, if any, payable
pursuant to Section 1006) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or
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lease and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by such successor of the covenants of the
Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Debt Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Debt Securities or coupons, stating that such covenants are expressly
being included solely for the benefit of such series), to convey,
transfer, assign, mortgage or pledge any property to or
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with the Trustee, or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series of Debt
Securities, stating that such Events of Default are expressly being
included solely to be applicable to such series); or
(4) 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 (or premium, if any) on Registered Securities or of principal
(or premium, if any) or any interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance
of Debt Securities in uncertificated form, provided any such action
shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related coupons in any material
respect; or
(5) to 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 Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provisions or (b) shall not apply to any Debt Security Outstanding; or
(6) to secure the Debt Securities;
(7) to establish the form or terms of Debt Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with
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any provision of this Indenture, provided such other provisions shall
not adversely affect the interests of the Holders of Debt Securities of
any series or any related coupons in any material respect; or
(10) 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 Debt Securities of any
series or any appurtenant coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture of such Debt Securities of such series and any
related coupons; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security or coupon
affected thereby,
(1) change the Stated Maturity of the principal or any
installment of principal of, or any installment of interest on, any
Debt Security, or reduce the principal amount thereof or the interest
thereon or any premium payable upon redemption or repayment thereof, or
change any obligation of the Company to pay additional amounts pursuant
to Section 1006 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), 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
502, or change any Place of Payment, or the coin or currency in which
any Debt Security or the interest thereon or any coupon is payable, 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, as the case may be), or modify the provisions of this Indenture
with respect to the subordination of the Debt Securities of any series
in a manner adverse to the Holder, or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of
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whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or reduce the
requirements of Section 1404 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt
Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in
this Section and Section 1008, or the deletion of this proviso, in
accordance with the requirements of Section 611(b) and 901(7), or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof.
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 Debt Securities, or which
modifies the rights of the Holders of Debt 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 Debt Securities of any other
series.
It shall not be necessary for any Act of Holders of the Debt Securities
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 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debt Securities of any series and any appurtenant coupons so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series and any appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities and any appurtenant coupons that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities and any
appurtenant coupons in accordance with the terms of the Debt Securities, any
appurtenant coupons and this Indenture. Any interest due on Bearer Securities on
or before Maturity, other than additional amounts, if any, payable as provided
in Section 1006 in respect of principal of (or premium, if any, on) such a Debt
Security, shall be payable only upon presentation and surrender
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of the several coupons for such interest installments as are evidenced thereby
as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Debt Securities an office or agency where Debt Securities (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Debt Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Debt Securities and this Indenture may be served. If Debt Securities of a
series are issuable as Bearer Securities, the Company will maintain, subject to
any laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 1006); provided, however,
that if the Debt Securities of such series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of this
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
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices or demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all presentations, surrenders, notices and demands,
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 1006) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, 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,
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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 other
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 301 with respect to any series of Debt 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 (in or outside of such Place of Payment) where the Debt
Securities of one or more series and any appurtenant coupons (subject to the
preceding paragraph) may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for any series of Debt Securities for such purposes. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such other office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities, it will,
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on or before each due date of the principal of (and premium, if any) or interest
on any of the Debt Securities of such series and any appurtenant coupons,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled 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 with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such series
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;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series or any
appurtenant coupons) in the making of any payment of principal of (and
premium, if any) or interest on the Debt Securities of such series or
any appurtenant coupons; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating its
obligations under this Indenture with respect to Debt Securities of any series
or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any principal and interest received on the Eligible Instruments
deposited with the Trustee or any money deposited
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with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) or interest on any Debt
Security of any series or any appurtenant coupons or any money on deposit with
the Trustee or any Paying Agent representing amounts deducted from the
Redemption Price or Repayment Price with respect to unmatured coupons not
presented upon redemption or exercise of the Holder's option for repayment
pursuant to Section 1106 or 1303 and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Debt
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
(including the principal and interest received on Eligible Instruments deposited
with the Trustee), 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 of general
circulation in the Borough of Manhattan, The City of New York, and each Place of
Payment or mailed to each such Holder, or both, 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 or mailing, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Purchase of Debt Securities by Company or Subsidiary.
If and so long as the Debt Securities of a series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any of its
Subsidiaries to, purchase any Debt Securities of that series by private treaty
at a price (exclusive of expenses and accrued interest) which exceeds 120% of
the mean of the nominal quotations of the Debt Securities of that series as
shown in The Stock Exchange Daily Official List for the last trading day
preceding the date of purchase.
SECTION 1005. Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
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 and is not reasonably likely to be disadvantageous in any
material respect to the Holders.
SECTION 1006. Restrictions Upon Sale or Issuance of Capital Stock of
Certain Subsidiary Banks.
The Company will not, and will not permit any Subsidiary to, sell,
assign, pledge, transfer or otherwise dispose of, or permit any Principal
Subsidiary Bank to issue except to
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the Corporation, any shares of Capital Stock of, or any securities convertible
into Capital Stock of, any Principal Subsidiary Bank or any shares of Capital
Stock of any Subsidiary owning, directly or indirectly, in whole or in part,
Capital Stock of any Principal Subsidiary Bank, except:
(1) any sale, assignment, pledge, transfer or other
disposition or issuance made, in the minimum amount required by law, to
any person for the purpose of the qualification of such person to serve
as a director;
(2) any sale, assignment, pledge, transfer or other
disposition or issuance for fair market value (as determined by the
Board of Directors of the Company, such determination being evidenced
by a resolution of the Board of Directors), if, after giving effect to
such disposition and to the issuance of any shares issuable upon
conversion or exchange of securities convertible or exchangeable into
Capital Stock, the Company would own directly or indirectly through
other Subsidiaries not less than 80% of the shares of each class of
Capital Stock of such Principal Subsidiary Bank;
(3) any sale, assignment, pledge, transfer or other
disposition or issuance made in compliance with an order or direction
of a court or regulatory authority of competent jurisdiction; or
(4) any sale by any Principal Subsidiary Bank of additional
shares of Capital Stock to its stockholders at any price, so long a (a)
prior to such sale the Company owns, directly or indirectly, shares of
the same class and (b) immediately after such sale, the percentage of
the shares of such class of Capital Stock owned by the Company shall
not have been reduced.
Notwithstanding the foregoing, any Principal Subsidiary Bank may be merged into
or consolidated with another banking institution organized under the the laws of
the United States, any State thereof or the District of Columbia, if after
giving effect to such merger or consolidation, the Corporation or any
Wholly-Owned Subsidiary owns at least 80% of the Capital Stock of such other
banking institution then issued and outstanding free and clear of any security
interest and if, immediately after giving effect thereto, no default or Event of
Default shall have happened and be continuing.
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SECTION 1007. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions 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 Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in the terms of such Debt Securities
and this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Debt 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 Debt Securities (or if the Debt 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 Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt 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 Debt
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by the terms of such Debt
Securities and the first paragraph of 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 part arising out of or in connection with actions taken
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or omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
SECTION 1008. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company ending after
the date hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture,
and, if the Company shall be in default, specifying all such defaults and the
nature thereof of which they may have knowledge.
The Company shall file with the Trustee written notice of the
occurrence of any default or Event of Default.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1005 with respect to the Debt
Securities of any series if, before the time for such compliance the Holders of
at least a majority in principal amount of the Debt Securities at the time
Outstanding shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt 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 301 for Debt Securities of any
series) in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any
redemption of Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series with like
tenor and terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Debt Securities of such series or any integral multiple thereof which is also an
authorized denomination) of the principal amount of Registered Securities or
Bearer Securities (if issued in more than one authorized denomination) of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
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SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to
be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only
at such place or places which are outside the United States, except as
otherwise provided in Section 1002,
(7) that the redemption is for a sinking fund, if such is the
case, and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company, or, at the Company's request, by
the Trustee in the name and at the expense of the Company, and shall be
irrevocable.
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SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, aggregate and hold in trust as provided in Section 1003) an amount of
money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of the Debt Securities
to be redeemed) will provide money on or prior to the Redemption Date in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof 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 1002, unless otherwise
specified as contemplated by Section 301.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities 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 and accrued
interest) such Debt 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 Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that 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 Debt Securities, or one
or more Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer 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 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 Redemption
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 upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, 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 Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a
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series except as otherwise specified as contemplated by Section 301 for Debt
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the term of Debt Securities of any series is herein referred to an
"optional sinking fund payment". If provided for by the terms of Debt Securities
of any series, the amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt
Securities.
The Company (1) may deliver Outstanding Debt 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 (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in lieu
of cash payments pursuant to this Section 1202, the principal amount of Debt
Securities to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debt Securities for redemption,
except upon Company Request, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the request of
the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
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SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 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 1104. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections
1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Debt 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 301 for Debt
Securities of such series) in accordance with this Article.
SECTION 1302. Repayment of Debt Securities.
Each Debt 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 301.
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SECTION 1303. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Debt 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 1002. Such notice, which shall be
irrevocable, shall specify the principal amount of such Debt Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Debt Security or an integral multiple thereof, and shall identify the Debt
Security to be repaid and, in the case of a partial repayment of the Debt
Security, shall specify the denomination or denominations of the Debt Security
or Debt Securities of the same series to be issued to the Holder for the portion
of the principal of the Debt 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 1002.
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, 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
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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 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 Debt
Security so surrendered which is not to be paid; 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 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 Debt Securities shall
relate, in the case of any Debt Security repaid or to be repaid only in part, to
the portion of the principal of such Debt Security which has been or is to be
repaid.
SECTION 1304. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt 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, Debt
Securities of such series from the Holders thereof who give notice and surrender
their Debt Securities in accordance with Section 1303.
SECTION 1305. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Debt Securities so to be repaid having been surrendered as aforesaid, such Debt
Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall
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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 Debt Securities and shall be
obligated to pay interest on such principal amount at the rate borne by such
Debt Securities from time to time until payment in full of such principal
amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in part as
Bearer Securities, a meeting of Holders of Debt 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
Debt Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1401, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt 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 106, not less than 21 no more than 180 days prior to the date fixed for
the meeting.
(b) 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 Debt
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Debt Securities of such series for any purpose specified in
Section 1401, 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
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provided herein, then the Company or the Holders of Debt Securities of such
series in the amount above specified, as the case may be, may determine the time
and the place in 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 (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Debt
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 Debt 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 Debt 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 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt 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 not less than a
majority in principal amount of the Outstanding Debt Securities of a series, the
Persons entitled to vote a majority in principal amount of the Outstanding Debt
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 Debt 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
this reconvening of any adjourned meeting shall be given as provided in Section
1402(a), 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
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principal amount of the Outstanding Debt Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, 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
of majority in principal amount of the Outstanding Debt Securities of that
series, provided however, that, except as limited by the proviso to Section 902,
any resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a majority in
principal amount of the Outstanding Debt 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 a majority
in principal amount of the Outstanding Debt Securities of that series; and
provided, further, that, except as limited by the proviso to Section 902, 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 Debt 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 Debt
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1405. 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 Debt Securities of such series in regard to proof of the holding of
Debt Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Debt Securities shall be proved in the manner specified in
Section 104 and the appointment of any
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proxy shall be proved in the manner specified in Section 104 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 104 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 104 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 Debt Securities as provided in Section 1402(b), in
which case the Company or the Holders of Debt 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 Debt Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Debt 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 Debt
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the 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 Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly called
pursuant to Section 1402 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 Debt Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Debt Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting
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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 Debt 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 1402 and, if applicable, Section 1401. 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 FIFTEEN
DEFEASANCE
SECTION 1501. Termination of Company's Obligations.
If this Section 1501 is specified, as contemplated by Section 301, to
be applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest when due on the
Debt Securities of such series and any coupons appertaining thereto and any
mandatory sinking fund, repayment or analogous payments thereon on the scheduled
due dates therefor at the Stated Maturity thereof, the Company's obligations
under Section 1005 and any other covenant determined pursuant to Section 301 to
be subject to this Section shall terminate with respect to the Debt Securities
of the series for which such deposit was made; provided, however, that (i) no
Event of Default with respect to the Debt Securities of such series under
Section 501(6) or 501(7) or
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event that with notice or lapse of time or both would constitute such an Event
of Default shall have occurred and be continuing on such date, (ii) such deposit
will not result in a breach of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by which it
is bound, and (iii) such termination shall not relieve the Company of its
obligations under the Debt Securities of such series and this Indenture to pay
when due the principal of (and premium, if any) and interest and additional
amounts on such Debt Securities and any coupons appertaining thereto if such
Debt Securities or coupons are not paid (or payment is not provided for) when
due from the money and Eligible Instruments (and the proceeds thereof) so
deposited.
It shall be a condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under Section 1005 and any other covenant determined pursuant to Section 301 to
be subject to this Section that the Company deliver to the Trustee (i) an
Opinion of Counsel to the effect that: (a) Holders of Debt Securities of such
series and any coupons appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and termination
and (b) such Holders (and future Holders) will be subject to tax in the same
amount, manner and timing as if such deposit and termination has not occurred,
(ii) an Officers' Certificate to the effect that under the laws in effect on the
date such money and/or Eligible Instruments are deposited with the Trustee, the
amount thereof will be sufficient, after payment of all Federal, state and local
taxes in respect thereof payable by the Trustee, to pay principal (and premium,
if any) and interest when due on the Debt Securities of such series and any
coupons appertaining thereto; and (iii) an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for
relating to the defeasance contemplated in this Section have been complied with.
It shall be an additional condition to the deposit of cash and/or
Eligible Instruments and the termination of the Company's obligations pursuant
to the provisions of this Section under Section 1005 and any other covenant
determined pursuant to Section 301 to be subject to this Section, with respect
to the Debt Securities of any series then listed on the New York Stock Exchange,
that the Company deliver an Opinion of Counsel that the Debt Securities of such
series will not be delisted from the New York Stock Exchange as a result of such
deposit and termination.
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After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Debt Securities
of such series under Section 1005 and any other covenant determined pursuant to
Section 301 to be subject to this Section.
SECTION 1502. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money or Eligible Instruments not required for the payment
of the principal of (and premium, if any) and interest on the Debt Securities of
any series and any related coupons for which money or Eligible Instruments have
been deposited pursuant to Section 1501 held by them at any time.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 1501. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1503. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the deposited Eligible
Instruments or the principal or interest received on such Eligible Instruments.
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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.
STAR BANC CORPORATION
By _________________________________
Its______________________________
[CORPORATE SEAL]
Attest:
_________________________________
Secretary
___________________________________
By_________________________________
Its________________________________
[CORPORATE SEAL]
Attest:
_________________________________
Secretary
98
<PAGE> 110
STATE OF OHIO )
) SS.
COUNTY OF ________ )
On the ____ day of _________, ____, before me personally came
________________, to me known, who, being duly sworn, did depose and say that he
resides at _______________________ ___________; that he is a
_____________________ of STAR BANC Corporation, a corporation described in and
which executed the above instrument; that he knows the seal of said corporation;
that it was so affixed pursuant to the authority of the Board of Directors of
said corporation; and that he signed his name thereto pursuant to like
authority.
_________________________________
Notary Public
99
<PAGE> 111
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On the ____ day of _________, ____, before me personally came
_____________________, to me known, who, being duly sworn, did depose and say
that he resides at ____________ ____________________________; that he is a
____________________ of _____________, a national banking association described
in and which executed the above instrument; that he knows the seal of said
corporation; that it was so affixed pursuant to the authority of the Board of
Directors of said corporation; and that he signed his name thereto pursuant to
like authority.
_________________________________
Notary Public
100
<PAGE> 112
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
STAR BANC CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of ____________,
____ (the "Indenture") between STAR BANC Corporation and ______________, as
trustee (the "Trustee"), covering the above-captioned Debt Securities. This is
to certify that as of the date hereof, _________________ principal amount of
Debt Securities credited to you for our account (i) is owned by persons that are
not United States Persons, as defined below; (ii) is owned by United States
Persons that are (a) foreign branches of United States financial institutions
(as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States Persons who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution encloses herewith a
certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Debt Securities for purposes of
resale directly or indirectly to a United States Person or to a person within
the United States or its possessions.
[Insert if certificate does not relate to an interest payment--We
undertake to advise you by tested telex followed by written confirmation if the
above statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Debt Securities in bearer form as to all of such
Debt Securities with respect to such of said Debt Securities as then appear in
your books as being held for our account.] We understand that this certificate
is required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of
A-1
<PAGE> 113
America (including the District of Columbia), a corporation, partnership or
other entity created or organized in or under the laws of the United States or
any political subdivision thereof or an estate or trust that is subject to
United States Federal income taxation regardless of the source of its income.
[This certificate excepts and does not relate to __________ principal
amount of Debt Securities credited to you for our account and to which we are
not now able to make the certification set forth above. We understand that
definitive Debt Securities cannot be delivered and interest cannot be paid until
we are able to so certify with respect to such principal amount of Debt
Securities.]*
Dated:________________________
[To be dated on or after
____________________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
_____________________________________
(Authorized Signatory)
Name:________________________________
Title:_______________________________
____________________
* Delete if inappropriate
A-2
<PAGE> 114
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
STAR BANC CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of ____________,
____ (the "Indenture"), between STAR BANC Corporation and _______________, as
trustee, relating to the offering of the above-captioned Debt Securities (the
"Debt Securities"). Unless herein defined, terms used herein have the same
meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside the
United States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulation Section 1.165-
12(c)(1)(v)) that holds customers' securities in the ordinary course of its
trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate.
Dated:_____________________
[To be dated on or after
____________________ (the
date determined as provided
in the Indenture)]
A-3
<PAGE> 115
[Name of Person Entitled to
Receive Bearer Security]
_________________________________
(Authorized Signatory)
Name:____________________________
Title:___________________________
A-4
<PAGE> 116
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
STAR BANC CORPORATION
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion, _____________, of the Global Security
representing the above-captioned issue [which is herewith submitted to be
exchanged for definitive Debt Securities]* [for which we are seeking to obtain
payment of interest]* (the "Submitted Portion"). This is to certify, pursuant to
the Indenture dated as of _____________, ____ (the "Indenture") between STAR
BANC Corporation and _____________, as trustee (the "Trustee"), that we have
received in writing, by tested telex or by electronic transmission from member
organizations with respect to each of the persons appearing in our records as
being entitled to a beneficial interest in the Submitted Portion a Certificate
of Beneficial Ownership by a Non-United States Person or by Certain Other
Persons [and, in some cases, a Certificate of Status as a Foreign Branch of a
United States Financial Institution, authorizing us to inform the issuer or the
issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you deliver to the office of _______________ in
__________________ definitive Bearer Securities in the denominations on the
attached Schedule A.
B-1
<PAGE> 117
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated:___________________
By:_________________________________
____________________
* Delete if inappropriate.
B-2
<PAGE> 1
EXHIBIT 4(5)
<PAGE> 2
STAR BANC CORPORATION
TO
---------------------------
---------------------------
TRUSTEE
----------------
INDENTURE
DATED AS OF ________________
----------------
SUBORDINATED DEBT SECURITIES
<PAGE> 3
STAR BANC CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF _______________
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1).................................................................. 609
(a)(2).................................................................. 609
(a)(3).................................................................. Not Applicable
(a)(4).................................................................. Not Applicable
(a)(5).................................................................. 609
(b)..................................................................... 608, 610
(c)..................................................................... Not Applicable
Section 311(a).................................................................... 613
(b)..................................................................... 613
Section 312(a)..................................................................... 701, 702(a)
(b)..................................................................... 702(b)
(c)..................................................................... 702(c)
Section 313(a)..................................................................... 703(a)
(b)..................................................................... 703(a)
(c)..................................................................... 703(a)
(d)..................................................................... 703(b)
Section 314(a)..................................................................... 704, 1004
(b)..................................................................... Not Applicable
(c)(1).................................................................. 102
(c)(2).................................................................. 102
(c)(3).................................................................. Not Applicable
(d)..................................................................... Not Applicable
(e)..................................................................... 102
Section 315(a)..................................................................... 601
(b)..................................................................... 602
(c)..................................................................... 601
(d)..................................................................... 601
(e)..................................................................... 514
Section 316(a)..................................................................... 101
(a)(1)(A)............................................................... 104(h), 502, 512
(a)(1)(B)............................................................... 104(h), 513
(a)(2).................................................................. Not Applicable
(b)..................................................................... 508
(c)..................................................................... 104(h)
Section 317(a)(1).................................................................. 503
(a)(2).................................................................. 504
(b)..................................................................... 1003
Section 318(a)..................................................................... 107
(c)..................................................................... 107
</TABLE>
- -----------------------------
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties .................................................................................... 1
Recitals ................................................................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.................................................................. 1
Act.......................................................................... 2
Affiliate.................................................................... 2
Authorized Newspaper......................................................... 2
Bearer Security.............................................................. 2
Board of Directors........................................................... 2
Board Resolution............................................................. 3
Business Day................................................................. 3
Capital Exchange Agent....................................................... 3
Capital Exchange Date........................................................ 3
Capital Exchange Price.......................................................
Capital Securities........................................................... 3
Capital Security Election Form............................................... 3
CEDEL or CEDEL S.A........................................................... 4
Closing Price................................................................ 4
Commission................................................................... 4
Company...................................................................... 4
Company Request and Company Order............................................ 4
Conversion Price............................................................. 4
Convertible Securities....................................................... 5
Corporate Trust Office....................................................... 5
corporation.................................................................. 5
coupon....................................................................... 5
Debt Securities.............................................................. 5
Defaulted Interest........................................................... 5
Depositary................................................................... 5
Designated Currency.......................................................... 5
Dollar or $.................................................................. 5
ECU.......................................................................... 5
Eligible Instruments......................................................... 5
Euroclear.................................................................... 5
European Communities......................................................... 6
Event of Default............................................................. 6
Exchange Rate................................................................ 6
Exchange Rate Agent.......................................................... 6
Exchange Rate Officer's Certificate.......................................... 6
</TABLE>
-i-
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
Foreign Currency............................................................. 6
Global Exchange Agent........................................................ 6
Global Exchange Date......................................................... 6
Global Security.............................................................. 6
Holder....................................................................... 6
Indenture.................................................................... 6
interest..................................................................... 7
Interest Payment Date........................................................ 7
Market Value................................................................. 7
Maturity..................................................................... 7
Officers' Certificate........................................................ 7
Opinion of Counsel........................................................... 7
Optional Securities Fund..................................................... 7
Original Issue Discount Security............................................. 8
Outstanding.................................................................. 8
Paying Agent................................................................. 9
Perpetual Preferred Stock.................................................... 9
Person....................................................................... 9
Place of Capital Exchange.................................................... 9
Place of Payment............................................................. 9
Predecessor Security......................................................... 9
Primary Federal Regulator.................................................... 9
Redemption Date.............................................................. 9
Redemption Price............................................................. 10
Registered Security.......................................................... 10
Regular Record Date.......................................................... 10
Remarketing Entity........................................................... 10
Repayment Date............................................................... 10
Repayment Price.............................................................. 10
Responsible Officer.......................................................... 10
Rights....................................................................... 10
Secondary Offering........................................................... 10
Securities Fund.............................................................. 10
Security Register............................................................ 10
Senior Debt.................................................................. 11
Special Record Date.......................................................... 11
Stated Maturity.............................................................. 11
Trust Indenture Act.......................................................... 11
Trustee...................................................................... 11
United States................................................................ 11
United States Alien.......................................................... 11
U.S. Government Obligations.................................................. 11
Section 102. Compliance Certificates and Opinions......................................... 12
Section 103. Form of Documents Delivered to Trustee....................................... 13
Section 104. Acts of Holders.............................................................. 13
Section 105. Notices, etc., to Trustee and Company........................................ 15
Section 106. Notice to Holders; Waiver.................................................... 16
Section 107. Conflict with Trust Indenture Act............................................ 17
Section 108. Effect of Headings and Table of Contents..................................... 18
Section 109. Successors and Assigns....................................................... 18
</TABLE>
ii
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
Section 110. Separability Clause .......................................................... 18
Section 111. Benefits of Indenture......................................................... 18
Section 112. Governing Law................................................................. 18
Section 113. Legal Holidays................................................................ 18
Section 114. Counterparts.................................................................. 19
ARTICLE TWO
Debt Security Forms
Section 201. Forms Generally.............................................................. 19
Section 202. Form of Trustee's Certificate of
Authentication............................................................. 20
Section 203. Debt Securities in Global Form............................................... 20
ARTICLE THREE
The Debt Securities
Section 301. Amount Unlimited; Issuance in Series......................................... 21
Section 302. Denominations................................................................ 25
Section 303. Execution, Authentication, Delivery and
Dating..................................................................... 26
Section 304. Temporary Debt Securities.................................................... 29
Section 305. Registration; Registration of Transfer and
Exchange................................................................... 33
Section 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities............................................................ 38
Section 307. Payment of Interest; Interest Rights
Preserved.................................................................. 39
Section 308. Persons Deemed Owners........................................................ 42
Section 309. Cancellation................................................................. 43
Section 310. Computation of Interest...................................................... 43
Section 311. Certification by a Person Entitled to
Delivery of a Bearer Security.............................................. 43
Section 312. Judgments.................................................................... 43
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture...................................... 44
Section 402. Application of Trust Money and Eligible
Instruments................................................................ 47
Section 403. Satisfaction, Discharge and Defeasance
of Debt Securities of any Series........................................... 47
</TABLE>
-iii-
<PAGE> 7
<TABLE>
<CAPTION>
ARTICLE FIVE
Remedies
<S> <C> <C>
Section 501. Events of Default............................................................ 50
Section 502. Acceleration of Maturity; Rescission and
Annulment.................................................................. 50
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee................................................. 52
Section 504. Trustee May File Proofs of Claim............................................. 54
Section 505. Trustee May Enforce Claims Without
Possession of Debt Securities or Coupons................................... 54
Section 506. Application of Money Collected............................................... 55
Section 507. Limitation on Suits.......................................................... 56
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to
Exchange Debt Securities for Capital
Securities................................................................. 56
Section 509. Restoration of Rights and Remedies........................................... 57
Section 510. Rights and Remedies Cumulative............................................... 57
Section 511. Delay or Omission Not Waiver................................................. 57
Section 512. Control by Holders of Debt Securities........................................ 58
Section 513. Waiver of Past Defaults...................................................... 58
Section 514. Undertaking for Costs........................................................ 59
Section 515. Waiver of Stay or Extension Laws............................................. 59
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.......................................... 60
Section 602. Notice of Default ........................................................... 60
Section 603. Certain Rights of Trustee.................................................... 60
Section 604. Not Responsible for Recitals or Issuance
of Debt Securities......................................................... 62
Section 605. May Hold Debt Securities or Coupons.......................................... 62
Section 606. Money Held in Trust.......................................................... 62
Section 607. Compensation and Reimbursement............................................... 62
Section 608. Disqualification; Conflicting Interests...................................... 63
Section 609. Corporate Trustee Required; Eligibility...................................... 64
Section 610. Resignation and Removal; Appointment of
Successor.................................................................. 64
Section 611. Acceptance of Appointment by Successor....................................... 67
Section 612. Merger, Conversion, Consolidation or
Succession to Business..................................................... 68
</TABLE>
-iv-
<PAGE> 8
<TABLE>
<CAPTION>
<S> <C> <C>
Section 613. Preferential Collection of Claims Against
Company.................................................................... 68
Section 614. Authenticating Agent......................................................... 69
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and
Addresses of Holders....................................................... 70
Section 702. Preservation of Information; Communications
to Holders................................................................. 71
Section 703. Reports by Trustee........................................................... 71
Section 704. Reports by Company........................................................... 72
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, etc. Only on
Certain Terms.............................................................. 72
Section 802. Successor Corporation Substituted............................................ 73
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent
of Holders................................................................. 73
Section 902. Supplemental Indentures with Consent of
Holders.................................................................... 75
Section 903. Execution of Supplemental Indentures......................................... 77
Section 904. Effect of Supplemental Indentures............................................ 77
Section 905. Conformity With Trust Indenture Act.......................................... 77
Section 906. Reference in Debt Securities to
Supplemental Indentures.................................................... 78
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest................................... 78
Section 1002. Maintenance of Office or Agency.............................................. 78
Section 1003. Money for Debt Securities Payments to
Be Held in Trust......................................................... 80
Section 1004. Officers' Certificate as to Default.......................................... 82
Section 1005. Existence ................................................................... 82
</TABLE>
-v-
<PAGE> 9
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1005. Waiver of Certain Covenants.................................................. 81
Section 1006. Payment of Additional Amounts................................................ 82
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101. Applicability of Article..................................................... 83
Section 1102. Election to Redeem; Notice to Trustee........................................ 83
Section 1103. Selection by Trustee of Debt Securities
to be Redeemed............................................................. 83
Section 1104. Notice of Redemption......................................................... 84
Section 1105. Deposit of Redemption Price.................................................. 85
Section 1106. Debt Securities Payable on Redemption
Date....................................................................... 86
Section 1107. Debt Securities Redeemed in Part............................................. 87
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article..................................................... 87
Section 1202. Satisfaction of Sinking Fund Payments
with Debt Securities....................................................... 87
Section 1203. Redemption of Debt Securities for
Sinking Fund............................................................... 88
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article..................................................... 89
Section 1302. Repayment of Debt Securities................................................. 89
Section 1303. Exercise of Option; Notice .................................................. 89
Section 1304. Election of Repayment by Remarketing
Entities................................................................... 91
Section 1305. Securities Payable on the Repayment Date..................................... 91
ARTICLE FOURTEEN
Exchange of Capital Securities for Debt Securities
Section 1401. Applicability of Article..................................................... 91
Section 1402. Exchange of Capital Securities for Debt
Securities at Stated Maturity.............................................. 92
Section 1403. Right of Early Exchange of Capital
</TABLE>
-vi-
<PAGE> 10
<TABLE>
<CAPTION>
<S> <C> <C>
Securities for Debt Securities............................................. 93
Section 1404. Notices of Exchange.......................................................... 93
Section 1405. Rights and Duties of Holders of Debt
Securities to be Exchanged for Capital
Securities................................................................. 96
Section 1406. Election to Exchange......................................................... 98
Section 1407. Deposit of Capital Exchange Price............................................ 98
Section 1408. Debt Securities Due on Capital Exchange
Date; Debt Securities Exchanged in Part.................................... 98
Section 1409. Form of Capital Security Election Form....................................... 100
Section 1410. Fractional Capital Securities................................................ 101
Section 1411. Company to Obtain Governmental and
Regulatory Approvals....................................................... 101
Section 1412. Taxes on Exchange............................................................ 101
Section 1413. Covenants as to Capital Securities and
Secondary Offering......................................................... 102
Section 1414. Provision in Case of Consolidation,
Merger or Transfer of Assets............................................... 103
Section 1415. Responsibility of Trustee.................................................... 103
Section 1416. Revocation of Obligation to Exchange
Capital Securities for Debt Securities..................................... 104
Section 1417. Optional Securities Funds.................................................... 104
ARTICLE FIFTEEN
Securities Funds
Section 1501. Creation of Securities Funds................................................. 106
Section 1502. Designations of Securities Funds............................................. 106
Section 1503. Covenant of the Company to Obtain
Securities Funds........................................................... 106
ARTICLE SIXTEEN
Meetings of Holders of Debt Securities
Section 1601. Purposes for Which Meetings May Be Called.................................... 108
Section 1602. Call, Notice and Place of Meetings........................................... 108
Section 1603. Persons Entitled to Vote at Meetings......................................... 108
Section 1604. Quorum; Action............................................................... 109
Section 1605. Determination of Voting Rights; Conduct
and Adjournment of Meetings................................................ 110
Section 1606. Counting Votes and Recording Action
of Meetings................................................................ 111
</TABLE>
-vii-
<PAGE> 11
<TABLE>
<CAPTION>
ARTICLE SEVENTEEN
Defeasance
<S> <C> <C>
Section 1701. Termination of Company's Obligations ........................................ 112
Section 1702. Repayment to Company......................................................... 113
Section 1703. Indemnity for Eligible Instruments........................................... 114
ARTICLE EIGHTEEN
Subordination of Debt Securities
Section 1801. Debt Securities Subordinate to Senior Debt................................... 114
Section 1802. Trustee and Holders of Debt Securities May
Rely on Certificate of Liquidating Agent;
Trustee May Require Further Evidence as
to Ownership of Senior Debt; Trustee Not
Fiduciary to Holders of Senior Debt........................................ 117
Section 1803. Payment Permitted if No Default.............................................. 118
Section 1804. Trustee Not Charged with Knowledge
of Prohibition............................................................. 119
Section 1805. Trustee to Effectuate Subordination.......................................... 119
Section 1806. Rights of Trustee as Holder of Senior Debt................................... 119
Section 1807. Article Applicable to Paying Agents.......................................... 120
Section 1808. Subordination Rights Not Impaired by Acts
or Omissions of the Company or Holders
of Senior Debt............................................................. 120
ARTICLE NINETEEN
Conversion of Convertible Securities
Section 1901. Applicability of Article..................................................... 120
Section 1902. Right to Convert............................................................. 121
Section 1903. Exercise of Conversion Privilege; Delivery
of Common Stock on Conversion; No
Adjustment for Interest or Dividends....................................... 121
Section 1904. Cash Payments in Lieu of Fractional
Shares..................................................................... 123
Section 1905. Conversion Price............................................................. 123
Section 1906. Adjustment to Conversion Price............................................... 123
Section 1907. Effect of Reclassification, Consolidation,
Merger or Sale............................................................. 128
Section 1908. Taxes on Shares Issued....................................................... 129
Section 1909. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing
of Common Stock............................................................ 129
Section 1910. Responsibility of Trustee.................................................... 130
</TABLE>
-viii-
<PAGE> 12
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1911. Notice to Holders Prior to Certain Actions................................... 131
Section 1912. Covenant to Reserve Shares................................................... 132
Testimonium ................................................................................ 133
Signature and Seals ........................................................................ 133
Acknowledgements ........................................................................... 134
Exhibit A .................................................................................. A-1
Exhibit B .................................................................................. B-1
</TABLE>
-ix-
<PAGE> 13
INDENTURE (the "Indenture") dated as of
________________________________, between STAR BANC CORPORATION, an Ohio
corporation (hereinafter called the "Company"), having its principal place of
business at STAR BANC CENTER, 425 Walnut Street, P.O. Box 1038, Cincinnati, Ohio
45202 and ________________________________, a national banking association
(hereinafter called the "Trustee"), having its Corporate Trust Office at
___________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its subordinated
debentures, notes, bonds and other evidences of indebtedness (herein called the
"Debt Securities").
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Debt Securities of any series created and issued on or after the date hereof
by the Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders of such Debt Securities or of any such
series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust
Indenture Act, either directly or by
<PAGE> 14
reference therein, as in force at the date as of which this instrument
was exercised, except as provided in Section 905, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning
specified in Section 104.
"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.
"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.
"Bearer Security" means any Debt Security established pursuant
to Section 201 which is payable to bearer including, without limitation, unless
the context otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of
the Company, or the executive or any other committee of that board duly
authorized to act in respect hereof.
-2-
<PAGE> 15
"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. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment
or Place of Capital Exchange, means any day which is not a Saturday or Sunday
and which is not a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or Place of Capital Exchange are authorized
or obligated by law or executive order to close.
"Capital Exchange Agent" means the Person or Persons appointed
by the Company to give notices and to exchange Debt Securities of any series for
Capital Securities as specified in Article Fourteen.
"Capital Exchange Date", when used with respect to the Debt
Securities of any series, means any date on which such Debt Securities are to be
exchanged for Capital Securities pursuant to this Indenture.
"Capital Exchange Price", when used with respect to any Debt
Security of any series to be exchanged for Capital Securities, means the amount
of Capital Securities for which such Debt Security is to be exchanged pursuant
to this Indenture or the aggregate sale price of such Capital Securities in the
Secondary Offering for such Debt Security, as the case may be.
"Capital Securities" means any securities issued by the
Company which consist of any of the following: (i) Common Stock, (ii) Perpetual
Preferred Stock or (iii) securities which at the date of issuance may be issued
in exchange for, or the proceeds from the sale of which may be designated as
Securities Funds or Optional Securities Funds for the payment of the principal
of, "mandatory convertible securities" under applicable regulations of the
Primary Federal Regulator. Capital Securities may have such terms, rights and
preferences as may be determined by the Company.
"Capital Security Election Form" means a form substantially in
the form included in Section 1409.
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"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
"Closing Price" has the meaning specified in Section 1906(d).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Stock" means, when used with reference to the capital
stock of the Company, the class of stock which, at the date of execution of this
Indenture, is designated as common stock of the Company and stock of any class
or classes into which such common stock or any such other class may thereafter
be changed or reclassified. In case by reason of the operation of Article
Nineteen, the Convertible Securities shall be convertible into any other shares
or other securities or property of the Company or any other corporation, any
reference in this Indenture to the conversion of Convertible Securities pursuant
to Article Nineteen shall be deemed to refer to and include conversion of
Convertible Securities into such other shares or other securities or property.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively,
except as otherwise provided in this Indenture, a written request or order
signed in the name of the Company by the Chairman of the Board, a Vice Chairman
of the Board, the President or a Vice President (any references to a Vice
President of the Company herein shall be deemed to include any Vice President of
the Company whether or not designated by a number or word or words added before
or after the title "Vice President"), the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, Secretary or an Assistant Secretary of the
Company, or by another officer of the Company duly authorized to sign by a Board
Resolution, and delivered to the Trustee.
"Conversion Price" has the meaning specified in Section 1905.
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"Convertible Securities" means any series of Debt Securities
that are designated as such pursuant to Section 301.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered.
The term "corporation" includes corporations, associations,
companies and business trusts.
The term "coupon" means any interest coupon appertaining to a
Bearer Security.
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities authenticated
and delivered under this Indenture.
"Default" means any Event of Default and any default of the
type set forth in clauses (1) through (5) of Section 503.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any
series issuable or issued in the form of a Global Security, the Person (which
person shall be a clearing agency registered under the Securities Exchange Act
of 1934, as amended) designated as Depositary by the Company pursuant to Section
301 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Debt Securities of any such series shall mean the Depositary with respect to the
Debt Securities of that series.
"Designated Currency" has the meaning specified in Section
312.
"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.
"Eligible Instruments" means U.S. Government Obligations.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
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"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 501.
"Exchange Rate" shall have the meaning specified as
contemplated in Section 301.
"Exchange Rate Agent" shall have the meaning specified as
contemplated in Section 301.
"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 Debt 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 Debt
Securities denominated in ECU, and other composite currency or Foreign Currency,
and signed by the Chairman of the Board, a Vice Chairman of the Board, the
President, the Treasurer or any Assistant Treasurer of the Company or the
Exchange Rate Agent appointed pursuant to Section 301, 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 Agent" has the meaning specified in Section
304.
"Global Exchange Date" has the meaning specified in Section
304.
"Global Security" means a Debt Security issued to evidence all
or part of a series of Debt Securities in accordance with Section 303(c).
"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 a coupon, means the bearer
thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented, amended or restated by or pursuant to
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and, unless the context otherwise requires,
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shall include the terms of a particular series of Debt Securities established as
contemplated by Section 301.
The term "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", with respect to any Debt Security,
means the Stated Maturity of an installment of interest on such Debt Security.
"Market Value" of any Capital Securities issued on any Capital
Exchange Date for Debt Securities of any series shall be the sale price of such
Capital Securities which are sold in the Secondary Offering for the Debt
Securities of such series. In the event no such Secondary Offering takes place,
the Market Value of such Capital Securities shall be the fair value of such
Capital Securities on such Capital Exchange Date for Debt Securities of such
series as determined by three independent nationally recognized investment
banking firms selected by the Company.
"Maturity", when used with respect to any Debt Security, means
the date on which the principal of such Debt Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be counsel for
the Company, or who may be other counsel acceptable to the Trustee, which is
delivered to the Trustee.
"Optional Securities Fund" means a fund pursuant to which the
proceeds of sales of Capital Securities may be designated on the books of the
Company for the payment of any of the principal of any Debt Security pursuant to
Section 1417 of this Indenture.
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"Original Issue Discount Security" means any Debt 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 502.
"Outstanding", when used with respect to Debt Securities
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Debt
Securities and any coupons appertaining thereto; provided, however,
that if such Debt Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Debt Securities in exchange for or in lieu of which other
Debt Securities have been authenticated and delivered (other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such securities are held by
a bona fide purchaser in whose hands such securities are valid
obligations of the Company) or which have been paid, pursuant
to this Indenture; and
(iv) Securities which have been defeased pursuant to Section
1701;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Debt Security
denominated on one or more Foreign Currencies or currency units shall be the
Dollar equivalent, determined in the manner provided as contemplated by Section
301 on the date of original issuance of such Debt Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent on the date of original issuance of such Debt Security of the amount
determined as provided in clause (i) above) of such Debt Security, and (iii)
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or any Affiliate of the
Company or of such other obligor.
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"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt Securities on
behalf of the Company.
"Perpetual Preferred Stock" means any stock of any class of
the Company which has a preference over Common Stock in respect of dividends or
of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not mandatorily redeemable
or repayable, or redeemable or repayable at the option of the Holder, otherwise
than in shares of Common Stock or Perpetual Preferred Stock of another class or
series or with the proceeds of the sale of Common Stock or Perpetual Preferred
Stock.
"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 Capital Exchange", when used with respect to Debt
Securities of any series, means any place where the Debt Securities of such
series are exchangeable for Capital Securities as specified pursuant to Section
301.
"Place of Payment", when used with respect to the Debt
Securities of any series means any place where the principal of (and premium, if
any) and interest on the Debt Securities of that series are payable as specified
as contemplated by Section 301.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Primary Federal Regulator" means the primary United States
federal regulator of the Company (which at the date of this Indenture is the
Board of Governors of the Federal Reserve System), or any successor body or
institution.
"Redemption Date", when used with respect to any Debt Security
to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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"Redemption Price", when used with respect to any Debt
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Registered Security" means any Debt Security in the form of
Registered Securities established pursuant to Section 201 which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301.
"Remarketing Entity", when used with respect to Debt
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 Debt Securities.
"Repayment Date", when used with respect to any Debt 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 Debt 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 assigned by it to administer its corporate
trust matters.
"Rights" has the meaning specified in Section 1906(c).
"Secondary Offering", when used with respect to the Debt
Securities of any series, means the offering and sale by the Company of Capital
Securities for the account of Holders of Debt Securities of such series who
elect to receive cash and not Capital Securities on the Capital Exchange Date
for such series.
"Securities Fund" means a fund pursuant to which the proceeds
of sales of Capital Securities are designated on the books of the Company for
the payment of any principal of any Debt Security pursuant to the provisions of
Section 1501.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
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"Senior Debt" means any obligation of the Company to its
creditors whether now outstanding or subsequently incurred other than (i) any
obligation as to which, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such obligation
is not Senior Debt and (ii) obligations evidenced by the Debt Securities.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debt Security
or any installment of interest thereon, means the date specified in such Debt
Security or a coupon representing such installment of interest as the fixed date
on which the principal of such Debt Security or such installment is due and
payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of that series.
"United States" means the United States of America (including
the District of Columbia) and its possessions which include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island, and the Northern Mariana
Islands.
"United States Alien" means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more 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.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full
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<PAGE> 24
faith and credit is pledged, or obligations of a person controlled or supervised
by and acting as an agency or instrumentality of the United States the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case are not
callable or redeemable at the option of the issuer thereof.
SECTION 102. 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 (other than the
delivery of any Debt Security to the Trustee for authentication pursuant to
Section 303), the Company shall furnish to the Trustee, if so requested by the
Trustee, an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definition
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is 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 opinions or representations with respect to such
matters is erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Debt 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 Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt
Securities duly called and held in accordance with the provisions of Article
Sixteen, or a
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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 Debt Security, shall be sufficient for any purpose of this Indenture
and (subject to Section 601) 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 Debt Securities shall be proved in the manner provided in Section
1606.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) 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, banker 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 in the amount and with the
serial numbers 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.
(e) 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
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<PAGE> 27
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.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debt Security shall bind every
future holder of the same Debt Security and the Holder of every Debt Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, suffered or omitted by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Debt Security.
(g) For purposes of determining the principal amount of
Outstanding Debt Securities of any series of Holders of which are required,
requested or permitted to give any request, demand, authorization, direction,
notice, consent, waiver or take any other Act under this Indenture, (i) each
Original Issue Discount Security shall be deemed to have the principal amount
determined by the Trustee that could be declared to be due and payable pursuant
to the terms of such Original Issue Discount Security as of the date there is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, such Act by Holders of the required aggregate principal amount of the
Outstanding Debt Securities of such series and (ii) each Debt 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 Debt Security in the currency in which such Debt
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 Debt 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
301).
(h) The Company may set a record date for purposes of
determining the identity of Holders of Debt Securities of any series entitled to
vote or consent to any action by vote or consent authorized or permitted by
Section 512 or Section 513. 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 Debt Securities furnished to the Trustee pursuant to Section 701
prior to such solicitation.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holders or other document
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provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided), if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Secretary at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's 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; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required city outside the United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to be not later than the
latest date and not earlier than the earliest date prescribed for the giving of
such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or for any other reason, it shall be impossible or
impracticable to mail notice of any event to Holders when said notice is
required to be given
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pursuant to any provision of this Indenture or of the Debt Securities, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where notice to
Holders of Registered Securities is to be given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security 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 by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither 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.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act 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 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control.
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SECTION 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debt
Securities or coupons 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or
coupons, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying Agent, the Holders and the
holders of Senior Debt any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Debt Securities and coupons shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Capital Exchange Date, Repayment Date or Stated Maturity of any Debt Security
shall not be a Business Day at any Place of Payment or Place of Capital
Exchange, then (notwithstanding any other provision of this Indenture or of the
Debt Securities or coupons) payment of interest or principal (and premium, if
any) or exchange of Debt Securities for Capital Securities or cash need not be
made at such Place of Payment or Place of Capital Exchange on such date, but may
be made on the next succeeding Business Day at such Place of Payment or Place of
Capital Exchange with the same force and effect as if made on the Interest
Payment Date, Capital Exchange Date, Redemption Date, Repayment Date or Stated
Maturity, and no
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interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, Capital Exchange Date or Stated Maturity, as
the case may be.
SECTION 114. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities
and related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
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 Debt Securities or coupons, as evidenced by their
signatures on the Debt Securities or coupons. If the form of Debt Securities of
any series or coupons (including any such Global Security) is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 or the authentication and delivery of such
Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 301,
Debt Securities in bearer form other than Debt Securities in temporary or
permanent global form shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Debt
Securities, as evidenced by the execution of such Debt Securities and coupons.
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SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
[___________________________________]
as Trustee
By__________________________________
Authorized Officer
SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in
part in global form, as specified as contemplated by Section 301, then,
notwithstanding clause (12) of Section 301 and the provisions of Section 302,
such Global Security shall represent such of the Outstanding Debt Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Debt Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amounts of Outstanding Debt 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 303 or Section 304.
The provisions of the last sentence of Section 303(g) shall
apply to any Debt Securities represented by a Debt Security in global form if
such Debt Security was never issued and sold by the Company and the Company
delivers to the Trustee the Debt Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) with respect to the reduction in the principal amount
of Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer
form and in either temporary or permanent global form.
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ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of
the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of the series
pursuant to Section 304, 305, 306, 906, 1107, 1303, 1408 or 1903 and
except for any Debt Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal and premium, if
any, of the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of
the series shall bear interest, or the method or methods by which such
rate or rates may be determined, 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 Registered Security on any Interest Payment Date and the
circumstances, if any, in which the Company may defer interest
payments;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest on
Debt Securities of the series shall
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be payable, any Registered Securities of the series may be surrendered
for registration of transfer, Debt Securities of the series may be
surrendered for exchange and notices and demands to or upon the Company
in respect of the Debt Securities of the series and this Indenture may
be served and where notices to Holders pursuant to Section 106 will be
published;
(6) if applicable, the period or periods within which or the
date or dates on which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(7) if applicable, the place or places at which, the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities shall be exchangeable for Capital
Securities of the Company, which terms and conditions shall not be
inconsistent with Article Fourteen;
(8) any covenant or option of the Company to create a
Securities Fund for the repayment of the Debt Securities and the terms
and conditions of such Securities Fund, which terms and conditions
shall not be inconsistent with Article Fifteen;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Debt 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 Debt Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(10) whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Debt
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 Debt Security of such series of like tenor and
term to be issued;
(11) whether the Debt Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities
and, in such case, the Depositary and Global Exchange Agent for such
Global Security or
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Securities, whether such global form shall be permanent or temporary
and, if applicable, the Global Exchange Date;
(12) if Debt Securities of the series are to be issuable
initially in the form of a temporary Global Security, the circumstances
under which the temporary Global Security can be exchanged for
definitive Debt Securities and whether the definitive Debt Securities
will be Registered and/or Bearer Securities and will be in global form
and whether interest in respect of any portion of such Global Security
payable in respect of an Interest Payment Date prior to the Global
Exchange Date shall be paid to any clearing organization with respect
to a portion of such Global Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(13) whether, and under what conditions, additional amounts
will be payable to Holders of Debt Securities of the series pursuant to
Section 1006;
(14) the denominations in which any Registered Securities of
the series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof, and the denominations in which any
Bearer Securities of such series shall be issuable, if other than the
denomination of $5,000;
(15) if other than the principal amount thereof, the portion of
the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(16) the currency or currencies of denomination of the Debt
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;
(17) the currency or currencies in which payment of the
principal of (and premium, if any) and interest on the Debt 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
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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 Exchange Rate Agent;
(18) if the amount of payments of principal of (and premium, if
any) or interest on the Debt Securities of the series may be determined
with reference to an index based on a currency or currencies other than
that in which the Debt Securities are denominated or designated to be
payable, the manner in which such amounts shall be determined;
(19) if payments of principal of (and premium, if any) or
interest on the Debt Securities of the series are to be made in a
Foreign Currency other than the currency in which such Debt Securities
are denominated, the manner in which the Exchange Rate with respect to
such payments shall be determined or if the Exchange Rate is to be
determined otherwise than as provided in Section 101;
(20) any Events of Default with respect to Debt Securities of
such series, if not set forth herein;
(21) any other covenant or warranty included for the benefit of
the Debt Securities of the series in addition to (and not inconsistent
with) those set forth herein for the benefit of Debt Securities of all
series, or any other covenant or warranty included for the benefit of
Debt Securities of the series in lieu of any covenant or warranty set
forth herein for the benefit of Debt Securities of all series, or any
provision that any covenant or warranty set forth herein for the
benefit of Debt Securities of all series shall not be for the benefit
of Debt Securities of such series, or any combination of such
covenants, warranties or provisions and the applicability, if any, of
the provisions of Section 1005 to such covenants and warranties;
(22) the terms and conditions, if any, pursuant to which the
Company's obligations under this Indenture may be terminated through
the deposit of money or Eligible Instruments as provided in Articles
Four and Seventeen;
(23) the Person or Persons who shall be Security Registrar for
the Debt Securities of such series if other than the Trustee, and the
place or places where the Security Register for such series shall be
maintained and the Person or Persons who will be the initial Paying
Agent or Agents, if other than the Trustee;
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(24) whether the Debt Securities of the series are Convertible
Securities and the terms related thereto including the Conversion Price
and the date on which the right to convert expires; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series 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 in such Officers' Certificate or in any such indenture supplemental
hereto.
Debt 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 or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in such form
and denominations as shall be specified in the form of Debt Security for such
series approved or established pursuant to Section 201 or in the Officers'
Certificate delivered pursuant to Section 301. In the absence of any
specification with respect to the Debt Securities of any series, the Registered
Securities of such series, if any, shall be issuable in denominations of $1,000
and any integral multiple thereof and the Bearer Securities of such series, if
any, shall be issuable in the denominations of $5,000.
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SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the
Company by its Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by its Treasurer or one of its Assistant
Treasurers or its Secretary or one of its Assistant Secretaries under its
corporate seal reproduced thereon. The signature of any of these officers on the
Debt Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Debt Securities or coupons of any series or did not hold such offices at
the date of such Debt Securities or coupons.
(b) At any time and from time to time after the execution and
delivery of this Indenture, Debt Securities of any series may be executed by the
Company and delivered to the Trustee for authentication, and, except as
otherwise provided in this Article Three, shall thereupon be authenticated and
delivered by the Trustee upon Company Order, without any further action by the
Company; provided, however, that, in connection with its original issuance or
any sale during the "restricted period" as defined in Section 1.163-5
(c)(2)(i)(b)(7) of the U.S. Treasury Regulations, a Bearer Security may be
delivered only outside the United States and, except in the case of a temporary
Global Security, only if the Company or its agent shall have received the
certification required pursuant to Sections 304(b)(iii) and (iv), unless such
certification shall have been provided earlier pursuant to section 304(b)(v)
hereof, and only if the Company has no reason to know that such certification is
false.
To the extent authorized in or pursuant to a Board Resolution
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, such written Company Order may be given by any
one officer or employee of the Company, may be electronically transmitted, and
may provide instructions as to registration of holders, principal amounts, rates
of interest, maturity dates and other matters contemplated by such Board
Resolution and Officers' Certificate or supplemental indenture to be so
instructed in respect thereof. Before authorizing and delivering the first Debt
Securities of any series (and upon request of the Trustee
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thereafter), the Company shall deliver to the Trustee (i) the certificates
called for under Sections 201 and 301 hereof and (ii) an Opinion of Counsel
described in the next sentence.
In authenticating such Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to any Debt
Securities, the Trustee shall be entitled to receive, prior to the initial
authentication of such Debt Securities, and (subject to Section 601) shall be
fully protected in relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating
thereto;
(iii) an Officers' Certificate setting forth the form and
terms of the Debt Securities of such series and coupons, if any,
pursuant to Sections 201 and 301 and stating that all conditions
precedent provided for in this Indenture relating to the issuance of
such Debt Securities have been complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and
coupons, if any, has been established in or pursuant to a
Board Resolution or by a supplemental indenture as
permitted by Section 201 in conformity with the provisions
of this Indenture;
(B) that the terms of such Debt Securities and
coupons, if any, have been established in or pursuant to a
Board Resolution or by a supplemental indenture as
permitted by Section 301 in conformity with the provisions
of this Indenture; and
(C) that such Debt Securities and coupons, if any,
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 binding obligations of the Company, enforceable
in accordance with their terms, except that where Debt
Securities of any series are to be exchanged for Capital
Securities or paid from the Securities
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Fund, the issuance of Capital Securities will require
further action by the Board of Directors, and subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally and the application
of general principles of equity and except further as
enforcement thereof may be limited by (i) requirements
that a claim with respect to any Debt Securities
denominated other than in Dollars (or a Foreign Currency
or currency unit judgment in respect of such claim) be
converted into Dollars at a rate of exchange prevailing on
a date determined pursuant to applicable law or (ii)
governmental authority to limit, delay or prohibit the
making of payments in Foreign Currencies or currency units
or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301
that the Debt Securities of a series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order 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 Debt Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered 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.
(d) The Trustee shall have the right to decline to
authenticate and deliver any Debt Securities under this Section 303 if the
issuance of such Debt Securities will adversely affect the Trustee's own rights,
duties or immunities under the Debt Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be
issued at one time, it shall not be necessary to deliver an Opinion of Counsel
and the items specified in subsection (b)(i)-(iii) above at the time of issuance
of each Debt Security, but such Opinion of Counsel, with appropriate
modifications, and the items specified in subsection (b)(i)-(iii) above may
instead be delivered at or prior to the time of the first issuance of Debt
Securities of such series.
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(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
(g) No Debt Security or coupon attached thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Debt Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee, and such certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 306, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
Notwithstanding the foregoing, if any Debt 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 Debt Security to the Trustee
for cancellation as provided in Section 309 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Debt Security or portion thereof has never
been issued and sold by the Company, for all purposes of this Indenture such
Debt Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 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 Securities Exchange Act of 1934 and any other applicable statute or
regulation.
SECTION 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of
any series, the Company may execute, and upon receipt of documents required by
Sections 301 and 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
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 Debt Securities may determine, as evidenced by their
signatures on such Debt Securities. In the
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case of Debt Securities of any series issuable as Bearer Securities, such
temporary Debt Securities may be in global form, representing all or any part of
the Outstanding Debt Securities of such series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global
form, if temporary Debt Securities of any series are issued, the
Company will cause definitive Debt Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Debt Securities of such series, the related temporary Debt
Securities shall be exchangeable for such definitive Debt Securities
upon surrender of the temporary Debt Securities of such series at the
office or agency of the Company in the Place of Payment for such
series, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Debt 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 Debt Securities of the same series of
like tenor and terms and 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 Bearer Security shall be delivered in exchange for a Bearer
Security only in compliance with the conditions set forth in Section
305. Until so exchanged, the temporary Registered Securities of any
series shall in all respects be entitled to the same benefits under
this Indenture as defined Registered Securities of such series.
(ii) If Debt Securities of any series are issued in temporary
global form, any such temporary Global Security shall, unless otherwise
provided pursuant to section 301, be delivered to the Depositary for
the benefit of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Debt Securities (or to such
other accounts as they may direct).
(iii) Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms of, any
such temporary Global Security (the "Global Exchange Date"), the
Company shall deliver definitive Debt Securities to the Trustee or the
agent appointed by the Company pursuant to Section 301 to effect the
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exchange of the temporary Global Security for definitive Debt
Securities (the "Global Exchange Agent"), in an aggregate principal
amount equal to the principal amount of such temporary Global Security,
executed by the Company. On or after the Global Exchange Date, such
temporary Global Security shall be surrendered by the Depositary to the
Global Exchange Agent, to be exchanged, in whole or from time to time
in part, for definitive Debt Securities without charge and the Trustee
or the Global Exchange Agent, if authorized by the Trustee pursuant to
Section 614, shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal
amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a part
of such temporary Global Security for definitive Debt Securities, the
portion of the principal amount and any interest thereon so exchanged
shall be endorsed by the Global Exchange Agent on a schedule to such
temporary Global Security, whereupon the principal amount and interest
payable with respect to such temporary Global Security shall be reduced
for all purposes by the amount so exchanged and endorsed. The
definitive Debt Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form,
global registered form or global bearer form, or any combination
thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, in the case of the exchange of
the temporary Global Security for definitive Bearer Securities
(including a definitive Global Bearer Security), upon such presentation
by the Depositary, such temporary Global Security shall be accompanied
by a certificate signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and
a certificate 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 set forth in Exhibit B to this Indenture, unless such
certificate(s) shall have been provided earlier pursuant to section
304(b)(v) hereof; and provided, further, that definitive Bearer
Securities (including a definitive Global Bearer Security) shall be
delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of
a series in a temporary Global Security shall be exchanged for
definitive Debt Securities of the
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same series and of like tenor and terms following the Global Exchange
Date when the account holder instructs Euroclear or CEDEL S.A., as the
case may be, to request such exchange on such account holder's behalf
and, in the case of the exchange of the temporary Global Security for
definitive Bearer Securities (including a definitive Global Bearer
Security), unless such certificate(s) shall have been provided earlier
pursuant to Section 304(b)(v) hereof, the account holder delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form
set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture,
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 Global Exchange Agent, any authenticating agent
appointed for such series of Debt 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
Debt Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take
delivery of such definitive Debt Securities in person at the offices of
Euroclear and CEDEL S.A. Definitive Debt 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.
(v) Until exchanged in full as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt
Securities of the same series and of like tenor and terms authenticated
and delivered hereunder, except that interest payable on a temporary
Global Security on an Interest Payment Date shall be payable to
Euroclear and CEDEL S.A. on such Interest Payment Date only if there
has been delivery by Euroclear and CEDEL S.A. to the Global Exchange
Agent of a certificate or certificates in the form set forth in Exhibit
B to this Indenture dated no earlier than the first Interest Payment
Date, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global 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 set forth in Exhibit A-1
and, if applicable, A-2 to this Indenture dated no earlier than the
first Interest Payment Date. Any interest so received by Euroclear and
CEDEL S.A. and not paid as herein provided prior to the Global
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Exchange Date shall be returned to the Global Exchange Agent which,
upon expiration of two years after such Interest Payment Date, shall
repay such interest to the Company in accordance with Section 1003.
SECTION 305. Registration; Registration of Transfer and
Exchange.
The Company shall cause to be kept at one of the offices or
agencies to be maintained by the Company in accordance with the provisions of
this Section 305 and Section 1002, with respect to the Debt Securities of each
series which are Registered Securities, a register (herein 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 of transfers of Registered Securities. Pursuant to Section 301,
the Company shall appoint, with respect to Debt Securities of each series which
are Registered Securities, a "Security Registrar" for the purpose of registering
such Debt Securities and transfers and exchanges of such Debt Securities as
herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder upon written request confirmed in
writing, Registered Securities of any series may be exchanged for other
Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount, and of a
like Stated Maturity upon surrender of the Registered Securities to be exchanged
at such office or agency. Whenever any Registered Securities are surrendered for
exchange, the Company shall execute and the Trustee shall make available for
delivery, the Registered Securities which the Holder is entitled to receive.
Bearer Securities may not be delivered in exchange for Registered Securities.
If Debt Securities of any series are issuable as both
Registered Securities and Bearer Securities at the option of the Holder upon
request conferred in writing, Registered Securities or Bearer Securities of any
series may be issued in exchange for Bearer Securities (except as otherwise
specified
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as contemplated by Section 301 with respect to a Bearer Security in global form)
of the same series, of any authorized denominations and of like tenor and terms
and aggregate principal amount and of a like Stated Maturity, 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 and the Trustee 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 such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor and terms after the close of business
at such office or agency of (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 of payment, as the case may be and interest will
not be payable 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 terms of this Indenture. The Company shall execute, and
the Trustee shall authenticate and make available for delivery, the Registered
Security or Securities which the Holder making the exchange is entitled to
receive.
Whenever any Debt Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Debt Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Debt Securities of such
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series or if at any time the Depositary for the Debt Securities of such series
shall no longer be eligible under Section 303(h), the Company shall appoint a
successor Depositary with respect to the Debt Securities of such series. If a
successor Depositary for the Debt Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 301(11)
shall no longer be effective with respect to the Debt 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 Debt Securities of such
series, will authenticate and deliver, Debt Securities of such series 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 Debt 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
Debt Securities of such series, will authenticate and deliver, Debt Securities
of such series in definitive form and 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 301 with
respect to a series of Debt Securities, the Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and
of any authorized denominations 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
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(b) to such Depositary a new Global Security of like tenor and
terms and in a denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the
aggregate principal amount of Debt Securities delivered to Holders
thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Debt Securities (a) in definitive registered form in authorized
denominations, if the Debt Securities of such series are issuable as Registered
Securities, (b) in definitive bearer form in authorized denominations, with
coupons attached, if the Debt Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, as shall be
specified by the beneficial owner thereof, if the Debt 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 unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that
delivery of a Bearer Security shall occur only outside the United States; and
provided further that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names 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. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Debt Securities are so registered. The Trustee shall deliver Bearer
Securities issued in exchange for a Global Security pursuant to this Section to
the persons, 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; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued
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if the Company has reason to know that any such certificate is false.
All Debt Securities issued upon any registration of transfer
or exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Security Registrar or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer, registration of transfer or exchange of
Debt 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.
The Company shall not be required (i) to issue, register the
transfer of or exchange Debt Securities of any particular series to be redeemed
or exchanged for Capital Securities for a period of fifteen days preceding the
first publication of the relevant notice of redemption or, if Registered
Securities are outstanding and there is no publication, the mailing of the
relevant notice of redemption or exchange, or (ii) to register the transfer of
or exchange any Registered Security so selected for redemption or exchange in
whole or in part, except the unredeemed or unexchanged portion of such
Registered Security being redeemed or exchanged in part, or (iii) to exchange
any Bearer Security so selected for redemption or exchange except that such a
Bearer Security may be exchanged for a Registered Security of like tenor and
terms of that series, provided that such Registered Security shall be
simultaneously surrendered for redemption or exchange.
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; neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel
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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 thereafter 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 306. Mutilated, Destroyed, Lost and Stolen Debt
Securities.
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
United States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupon, if any, appertaining to
such destroyed, lost or stolen Debt Security or to the Debt Security to which
such destroyed, lost or stolen coupon appertains; provided, however, that any
such new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Debt Security, pay such Debt
Security or coupon; provided, however, that payment of principal of (and
premium, if any) and any interest on Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States; and provided, further, that, with respect to
any such coupons, interest represented thereby (but not any additional amounts
payable as provided in Section 1006), shall be payable only upon presentation
and surrender of the coupons appertaining thereto.
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Upon the issuance of any new Debt Security or coupons 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 and printing
expenses) connected therewith.
Every new Debt Security of any series, with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed, lost or stolen
Debt Security, or in exchange for a Bearer Security to which a destroyed, lost
or stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Debt Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that 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 Debt
Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided pursuant to Section 301, interest
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. 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 in a Place of Payment for such series) 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
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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 of any series 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 registered 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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (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 of
such series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money and/or,
to the extent such Debt Securities are denominated and payable in
Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no
tax liability will be imposed upon the Trustee or the Holder of such
Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the
Trustee, without investment) be 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 and/or Eligible Instruments
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 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the Company shall
furnish the Trustee with a list, or shall make arrangements
satisfactory to the Trustee with respect thereto, of the names and
addresses of, and principal amounts of Registered Securities of such
series held by, the Holders appearing
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on the Security Register at the close of business on such Special
Record Date. In the name and at the expense of the Company, the Trustee
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 of Registered Securities of such series 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 the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2). 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 for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of 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.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Registered Securities may be listed, and upon such notice as maybe
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Subject to the limitations set forth in Section 1002, the
Holder of any coupon appertaining to a Bearer Security shall be entitled to
receive the interest payable on such
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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 1002.
If any Registered Security is exchanged for Capital Securities
after any record date and on or prior to the next succeeding Interest Payment
Date (other than any Debt Security whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest Payment Date
shall be paid by the Company on such Interest Payment Date notwithstanding such
exchange, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Debt Security is registered
at the close of business on such record date.
If any Bearer Security is exchanged for Capital Securities
after any record date and on or prior to the next succeeding Interest Payment
Date (other than any Debt Security whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest Payment Date
shall be payable on such Interest Payment Date notwithstanding such exchange,
and such interest (whether or not punctually paid or duly provided for) shall be
paid by the Company pursuant to such procedures as may be satisfactory to the
Trustee.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or of the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of Debt
Securities, all Debt Securities and coupons surrendered for payment, redemption,
repayment, transfer, exchange or credit against any sinking fund payment
pursuant to this Indenture, shall, if surrendered to the Company or any agent of
the Company, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any Debt
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Debt Securities so delivered
shall be promptly cancelled by the Trustee. No Debt Securities shall be
authenticated in lieu of or in exchange for any Debt Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Debt Securities and coupons held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a Company
Order the Company shall direct that the cancelled Debt Securities or coupons be
returned to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Debt Securities of any series, interest on the Debt Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to Delivery
of a Bearer Security.
Whenever any provision of this Indenture or a Debt Security
contemplates that certification by given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall
not unreasonably be withheld.
SECTION 312. Judgments.
The Company may provide, pursuant to Section 301, for the Debt
Securities of any series that, to the fullest extent
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possible under applicable law and except as may otherwise be specified as
contemplated in Section 301, (a) the obligation, if any, of the Company to pay
the principal of (and premium, if any) and interest on the Debt 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
301 is of the essence and agrees that judgments in respect of such Debt
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 Debt 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.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect, including the provisions of Article Eighteen hereof (except as
to any surviving rights of registration of transfer or exchange of Debt
Securities herein expressly provided for and rights to receive payments of
principal and interest thereon and any right to receive additional amounts, as
provided in Section 1006) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture when
(1) either
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(A) all Debt Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after such
exchange, surrender of which is not required or has been
waived as provided in Section 305, (ii) Debt Securities and
coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Bearer Securities called for
redemption or surrendered for repayment and maturing after the
relevant Redemption Date or Repayment Date, as appropriate,
surrender of which has been waived as provided in Section 1106
or 1303 and (iv) Debt Securities and coupons for whose payment
money and/or Eligible Instruments have 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 1003) have been
delivered to the Trustee cancelled or for cancellation; or
(B) all such Debt Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice by the Trustee
in the name, and at the expense, of the Company.
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii)
above, has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose money
and/or, to the extent such Debt Securities are denominated and
payable in Dollars only, Eligible Instruments the payments of
principal and interest on which when due (and without
reinvestment and providing no tax liability will be imposed
upon the Trustee or the Holders of Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay and discharge the entire
indebtedness on such Debt Securities and coupons of such
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series for principal (and premium, if any) and interest, and
any mandatory sinking fund, repayment or analogous payments
thereon, on the scheduled due dates therefor to the date of
such deposit (in the case of Debt Securities and coupons which
have become due and payable) or to the Stated Maturity or
Redemption Date, if any, and all Repayment Dates (in the case
of Debt Securities repayable at the option of the Holders
thereof); provided, however, that in the event a petition for
relief under the Bankruptcy Reform Act of 1978 or a successor
statute is filed with respect to the Company within 91 days
after the deposit, the obligations of the Company under the
Indenture with respect to the Debt Securities of such series
shall not be deemed terminated or discharged, and in such
event the Trustee shall be required to return the deposited
money and Eligible Instruments to the Company.
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company,
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with, and
(4) in the case of a deposit and discharge pursuant to
Subclause (B) of Clause (1) of this Section the Company has delivered
to the Trustee an Opinion of Counsel to the effect that the Company has
received from or there has been published by the Internal Revenue
Service a ruling to the effect that Holders of the Debt Securities of
the series will not recognize income, gain or loss for U.S. Federal
income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Sections 607 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
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SECTION 402. Application of Trust Money and Eligible
Instruments.
Subject to the provisions of the last paragraph of Section
1003, all money and Eligible Instruments deposited with the Trustee pursuant to
Section 401, 403 or 1701 shall be held in trust and such money and the principal
and interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee. Money or Eligible Instruments deposited and held in
trust pursuant to this Section shall not be subject to claims of the holders of
Senior Debt.
SECTION 403. Satisfaction, Discharge and Defeasance of Debt
Securities of any Series.
If this Section 403 is specified, as contemplated by Section
301, to be applicable to Debt Securities of any series, then, notwithstanding
Section 401, (i) the Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Debt Securities of any such series
and related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect,
including the provisions of Article Eighteen hereof (except as to the rights of
Holders of Debt Securities to receive, from the trust fund described in
subparagraph (1) below, payment of (x) the principal of (and premium, if any)
and any installment of principal of (and premium, if any) or interest on such
Debt Securities and related coupons on the Stated Maturity of such principal
(and premium, if any) or installment of principal (and premium, if any) or
interest or (y) any mandatory sinking fund payments or analogous payments
applicable to the Debt Securities of that series on that day on which such
payments are due and payable in accordance with the terms of this Indenture and
of such Debt Securities, the Company's obligations with respect to such Debt
Securities under Sections 304, 305, 306, 1002, 1003 and 1006 and the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including those
under Section 607 hereof); and (iii) the Trustee, at the expense of the Company,
shall, upon Company Order, execute proper instruments acknowledging satisfaction
and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities
of such series and related coupons, with
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reference to this Section 403, the Company has deposited or
caused to be deposited with the Trustee irrevocably, as trust
funds in trust, money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on
which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of
such Debt Securities) will provide money in such amounts as
will (together with any money irrevocably deposited in trust
with the Trustee, without investment) be sufficient to pay and
discharge (i) the principal of (and premium, if any) and
interest on the Outstanding Debt Securities of that series and
related coupons on the Stated Maturity of such principal or
interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to Debt Securities of such
series on the date on which such payments are due and payable
in accordance with the terms of this Indenture and of such
Debt Securities; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the Debt
Securities of such series;
(2) the Company has paid or caused to be paid all sums payable
with respect to the Outstanding Debt Securities of such series and
related coupons;
(3) such deposit will not result in a breach of, or constitute
a default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and
be continuing on the date of such deposit and no Event of Default under
Section 501(1) or Section 501(2) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 501(1) or Section 501(2) shall have occurred and be
continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (a) the Company has
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received from, or there has been published by, the Internal Revenue
Service a ruling, or (b) since the date of this Indenture there has
been a change in applicable Federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of Debt Securities and related coupons of
such series will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;
(6) if the Debt Securities of that series are then listed on
any domestic or foreign securities exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that such
deposit, defeasance and discharge will not cause such Debt Securities
to be delisted; and
(7) 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 the entire indebtedness of all Outstanding Debt Securities
and related coupons have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A)
above shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this
Section 403 with respect to all the Outstanding Debt Securities of any series,
the terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
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such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of
all obligations, covenants and agreements (except as provided above in this
Section 403) of the Company under this Indenture with respect to any series of
Debt Securities, the obligations of the Company to the Trustee under Section
607, and the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003, shall survive with respect to such series of Debt Securities.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Debt
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) the entry by a court or a governmental authority having
jurisdiction in the premises of (A) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or substantially
all of its assets or ordering the winding up or liquidation of the
affairs of the Company, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for
a period of 60 consecutive days; or
(2) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or substantially all of its assets; or
(3) any other Event of Default, if any, provided with respect
to Debt Securities of such series specified as contemplated by Section
301.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Debt Securities of any
series at the time Outstanding occurs and its continuing, then and in every such
case the Trustee or the
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Holders of not less than 25% in principal amount of Outstanding Debt Securities
of such series may declare the principal amount (or, if the Debt Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of and all
accrued but unpaid interest on all the Debt Securities of such series to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by such Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Debt Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt
Securities of such series and any related coupons,
(B) the principal of (and premium, if any, on) any
Debt Securities of such series which have become due otherwise
than by such declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such Debt
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on each
Debt Security and any related coupons at the rate or rates
prescribed therefor in such Debt Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expense,
disbursements and advances of the Trustee, its agents and
counsel;
and
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(2) all Events of Default with respect to Debt Securities of
such series have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Debt Security or any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund
payment, when and as due by the terms of a Debt Security of such
series, or
(4) default is made in any required designation of funds as
Securities Funds, or
(5) default is made 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 been
expressly included in this Indenture solely for the benefit of series
of Debt Securities other than such series), and such default or breach
continues for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of such series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest, sinking fund installment and interest, including the delivery of any
Capital Securities then required to be delivered, and,
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to the extent that payment of such interest shall be legally enforceable,
interest upon the overdue principal (and premium, if any) and, upon overdue
installments of interest, at the rate or rates prescribed therefor in such Debt
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts (including the
delivery of any Capital Securities then required to be delivered) 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 the delivery of any Capital Securities required to be delivered and
not so delivered, or, in the case of the failure to deliver Capital Securities,
money equal to the principal amount of the Debt Securities for which the Capital
Securities were to be exchanged, and may prosecute such proceeding to judgment
of final decree, and may enforce the same against the Company or any other
obligor upon such Debt Securities and coupons and collect the moneys (or money
equal to the principal amount of any Debt Securities for which Capital
Securities were to be exchanged) adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Debt Securities and coupons, wherever situated.
If a Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws as now or hereafter constituted, relative to the Company
or any other obligor upon the Debt Securities of a particular series or any
related coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall
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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 or interest) shall be entitled and
empowered, by intervention in such proceedings or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Debt Securities of such series and any appurtenant
coupons to file such other papers or documents as may be necessary or
advisable and to take any and all other actions under the Trust
Indenture Act in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Debt Securities or Coupons.
All rights of action and claims under this Indenture or the
Debt Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Debt Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name, as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debt Securities and coupons in respect of
which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(and premium, if any) or interest, upon presentation of the Debt Securities or
coupons, 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 607;
SECOND: To the payment of amounts then due and unpaid to the
holders of Senior Debt, to the extent required by Article Eighteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
and any coupons, in respect of which or for the benefit of which such
money has been collected ratably, without preference or priority of any
kind, according to the amounts due and payable on such Debt Securities
and any coupons for principal (and premium, if any) and interest,
respectively. The Holders of each series of Debt 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 Debt
Securities and matured but unpaid interest on such series of Debt
Securities in the currency in which such series of Debt Securities is
denominated into Dollars at the Exchange Rate as of the date of
declaration of acceleration of the Maturity of the Debt Securities; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Debt Securities 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
(1) such Holder has previously given written notice to the
Trustee of a continuing Default with respect to the Debt Securities of
such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Exchange Debt Securities for Capital
Securities.
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section
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307) interest on such Debt Security or payment of such coupon on the respective
Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in
the case of redemption or repayment, on the Redemption Date or the Repayment
Date, as the case may be), to have the Debt Securities exchanged for Capital
Securities pursuant to Article Fourteen, if applicable, and to institute suit
for the enforcement of any such payment or exchange, and such right shall not be
impaired without the consent of such Holder, subject, however, to the provisions
of Article Eighteen.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Debt 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.
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SECTION 512. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceedings so directed
would be unjustly prejudicial to the Holders of Debt Securities of such
series not joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of any such series and any related coupons waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund or analogous obligation with respect to the Debt
Securities of such series, or
(2) 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 Debt Security of such series or coupons
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 this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Debt Security or coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit 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 a due regard to the merits and good faith of the claims or defenses made
by such party litigant, but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Debt Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Debt Security or the payment of any coupons on or after
the respective Stated Maturity or Maturities expressed in such Debt Security or
coupon (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be) or for the enforcement of the right
to exchange any Debt Securities for Capital Securities as provided in Article
Fourteen.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
whenever 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 benefits 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.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties And Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided in the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Default.
If a default occurs hereunder with respect to Debt Securities
of any series and is not cured or waived, the Trustee shall transmit by mail to
all Holders of Debt Securities of such series notice of such default as and to
the extent provided by the Trust Indenture Act; provided, however, that, except
in the case of a default in the payment of the principal of (or premium, if any)
or interest on any Debt Security of such series or any related coupons or in the
payment of any sinking fund installment with respect to Debt Securities of such
series or in the exchange of Capital Securities for Debt Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of Debt
Securities of such series. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
a Default with respect to Debt Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or
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other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of such series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney, other than any such books or records containing
information as to the affairs of the customers of the Company or any of its
subsidiaries; provided that the Trustee may examine such books and records
relating to customers to the extent that such books and records contain
information as to any payments made to such customers in their capacity as
Holders of Debt Securities; and
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(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; no Exchange Rate Agent, Capital Exchange Agent, Global Exchange
Agent, Depositary or Paying Agent shall be deemed an agent of the Trustee and
the Trustee shall not be responsible for any act or omission by any of them.
SECTION 604. Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons or any Capital Securities. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds
thereof. The Trustee shall not be responsible for and makes no representations
to the Company's ability or authority to issue Bearer Securities or the
lawfulness thereof.
SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and coupons, and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
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(1) 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);
(2) 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
(3) 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 or performance of its duties
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a claim prior to the Debt
Securities and any coupons upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Debt Securities or any coupons. The
claims of the Trustee under this Section shall not be subject to the provisions
of Article Eighteen.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation that is eligible pursuant to the Trust Indenture Act to act as
such and organized and doing business under the laws of the United States, any
State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time with respect to the
Debt Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Debt Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding
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Debt Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
with respect to any series of Debt Securities and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect
to any series of Debt Securities or a decree or order for relief by a
court having jurisdiction in the premises shall have been entered in
respect of the Trustee in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law; or a
decree or order by a court having jurisdiction in the premises shall
have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official
of the Trustee or of its property or affairs, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, or
(4) the Trustee shall commence a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator or other similar
official of the Trustee or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of
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the Trustee for the Debt Securities of such series and the appointment of a
successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Debt Securities, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Debt Securities or one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt Securities of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Debt Security of such series for at least
six months may, subject to Section 514, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
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
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
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SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Debt Securities, 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 and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all) series,
the Company, the retiring Trustee upon payment of its charges and each successor
Trustee with respect to the Debt Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in 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
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the retiring Trustee with respect to the Debt Securities of that or those series
to which the appointment of such successor Trustee relates; but, on the request
of the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Debt Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the executing or filing of any paper or any further
act on the part of any of the parties hereto. In case any Debt Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company (or any other
obligor upon the Debt Securities), the
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Trustee shall be subject to the provisions of the Trust Indenture Act regarding
collection of claims against the Company (or any such other obligor).
SECTION 614. Authenticating Agent.
The Trustee shall upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication on behalf of the Trustee by an
authenticating agent and a certificate of authentication executed on behalf of
the Trustee by an authenticating agent. Each authenticating agent must be
acceptable to the Company and must be a corporation organized and doing business
under the laws of the United States or of any State, having a combined capital
and surplus of at least $50,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or State
authorities or the equivalent foreign authority in the case of an authenticating
agent who is not organized and doing business under the laws of the United
States or of any State thereof or the District of Columbia.
Any corporation succeeding to the corporate agency business of
an authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to
one or more series of Debt Securities by giving written notice of resignation to
the Trustee and to the Company. The Trustee may at any time terminate the agency
of any authenticating agent with respect to one or more series of Debt
Securities by giving written notice of termination to such authenticating agent
and to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee promptly
may appoint a successor authenticating agent. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers and duties of its predecessor hereunder, with like effect as if
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originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and
605 shall be applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
This is one of the Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
[_______________________________________________]
By___________________________________________
As Authenticating Agent for the Trustee
By___________________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee with respect to Debt Securities of each series for which it acts as
Trustee:
(1) semi-annually, not more than 15 days after the Regular
Record Date in respect of the Debt Securities of such series or on May
15 and November 15 of each year with
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respect to each series of Debt Securities for which there are no
Regular Record Dates, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Registered Securities as of such Regular Record Date or May 1 or
November 1, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders of Registered
Securities received by the Trustee in its capacity as Paying Agent or Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished. The Trustee
shall preserve for at least two years the names and addresses of Holders of
Bearer Securities filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Debt Securities,
and the corresponding rights and privileges of the Trustee, shall be as provided
by the Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, 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 any disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the first May 15 after the first issuance of Debt Securities pursuant to this
Indenture and at any other time required by the Trust Indenture Act, the Trustee
shall transmit
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to Holders such reports concerning the Trustee and its actions under this
Indenture and such other matters as may be required pursuant to the Trust
Indenture Act in the manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any political
subdivision thereof or any State or the District of Columbia thereof
and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to
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the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest
(including all additional amounts, if any, payable pursuant to Section
1006) on all the Debt Securities and any related coupons and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other
corporation, or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor had been named as
the Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures
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supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by such successor of the covenants of the
Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Debt Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Debt Securities or coupons, stating that such covenants are expressly
being included solely for the benefit of such series), to convey,
transfer, assign, mortgage or pledge any property to or with the
Trustee, or to surrender any right or power herein conferred upon the
Company; or
(3) to add to any additional Events of Default (and if such
Events of Default are to be applicable to less than all series of Debt
Securities, stating that such Events of Default are expressly being
included solely to be applicable to such series); or
(4) 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 (or premium, if any) on Registered Securities or of principal
(or premium, if any) or any interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance
of Debt Securities in uncertificated form, provided any such action
shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related coupons in any material
respect; or
(5) to 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 Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provisions or (b) shall not apply to any Debt Security Outstanding; or
(6) to establish the form or terms of Debt Securities of any
series as permitted by Sections 201 and 301; or
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(7) to secure the Debt Securities; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with any provision of this Indenture, provided such other
provisions shall not adversely affect the interests of the Holders of
Debt Securities of any series or any related coupons in any material
respect; or
(10) 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 Debt Securities of any
series or any appurtenant coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture of such Debt Securities of such series and any
related coupons; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security or coupon
affected thereby,
(1) change the Stated Maturity of the principal or any
installment of principal of, or any installment of interest on, any
Debt Security, or reduce the principal amount thereof or the interest
thereon or any premium payable upon redemption or repayment thereof, or
change any obligation of the Company to pay additional amounts
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pursuant to Section 1006 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), 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 502, or change any Place of Payment, or the coin or currency in
which any Debt Security or the interest thereon or any coupon is
payable, or impair any right to the delivery of Capital Securities in
exchange for Debt Securities provided for in this Indenture or 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 or Capital
Exchange Date, as the case may be), or modify the provisions of this
Indenture with respect to the subordination of the Debt Securities of
any series in a manner adverse to the Holder, or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1604 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1005, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt
Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in
this Section and Section 1005, or the deletion of this proviso, in
accordance with the requirements of Section 611(b) and 901(7); or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof; or
(5) impair the right of any Holder of Debt Securities of any
series to receive Capital Securities on any Capital Exchange Date for
Debt Securities of such series with a Market Value equal to the
principal amount of such Holder's Debt Securities of such series or in
an amount sufficient to provide proceeds upon sale by the Company in
the Secondary Offering equal to the principal amount of such Holder's
Debt Securities of such series; or
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(6) impair the right of any Holder of Convertible Securities
of any series to convert such Debt Securities pursuant to Article
Nineteen.
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 Debt Securities, or
which modifies the rights of the Holders of Debt 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 Debt Securities of any other
series.
It shall not be necessary for any Act of Holders of the Debt
Securities 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 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Debt Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupons appertaining thereto shall be bound
thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Debt Securities to Supplemental
Indentures.
Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debt Securities of any series and any
appurtenant coupons so modified as to conform, in the opinion of the Trustee and
the Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities of such series and any appurtenant
coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debt Securities and any appurtenant coupons that it will duly and
punctually pay the principal of (and premium, if any) and interest on the Debt
Securities and any appurtenant coupons in accordance with the terms of the Debt
Securities, any appurtenant coupons and this Indenture. Any interest due on
Bearer Securities on or before Maturity, other than additional amounts, if any,
payable as provided in Section 1006 in respect of principal of (or premium, if
any, on) such a Debt Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature. For all purposes of this Indenture, the
exchange of Capital Securities for Debt Securities of any series pursuant to the
Indenture shall constitute full payment of principal of the Debt Securities of
such series being exchanged on any Capital Exchange Date for Debt Securities of
such series, without prejudice to any Holder's rights pursuant to Section 1413.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Debt Securities an office or agency where Debt Securities (but, except
as otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered
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for payment, where Debt Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Debt Securities and this Indenture may be served. If Debt
Securities of a series are issuable as Bearer Securities, the Company will
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Debt Securities of such series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Debt Securities of such series pursuant to Section 1006);
provided, however, that if the Debt Securities of such series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland or the Luxem-
bourg 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 in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Debt Securities of such
series are listed on such exchange. The Company will give prompt written notice
to the Trustee of this 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 or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices or demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee its agent to receive all presentations, surrenders, notices
and demands, 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 1006) at the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, 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 other similar restrictions and the Trustee receives an Opinion of
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Counsel that such payment within the United States is legal. Unless otherwise
provided as contemplated by Section 301 with respect to any series of Debt
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 (in or outside of such Place of Payment) where the
Debt Securities of one or more series and any appurtenant coupons (subject to
the preceding paragraph) may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for any series of Debt Securities for such purposes. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such other office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Debt Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest on any of the Debt
Securities of such series and any appurtenant coupons, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled 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.
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The Company will cause each Paying Agent with respect to any
series of Debt Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such series
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;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series or any
appurtenant coupons) in the making of any payment of principal of (and
premium, if any) or interest on the Debt Securities of such series or
any appurtenant coupons; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating
its obligations under this Indenture with respect to Debt Securities of any
series or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any principal and interest received on the Eligible
Instruments deposited with the Trustee or any money deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any Debt Security of any
series or any appurtenant coupons or any money on deposit with the Trustee or
any Paying Agent representing amounts deducted from the Redemption Price or
Repayment Price with respect to unmatured coupons not presented upon redemption
or exercise of the Holder's option for repayment pursuant to Section 1106 or
1303 and remaining unclaimed for two years after such principal (and premium, if
any) or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the
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Holder of such Debt 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 (including the principal and interest received on
Eligible Instruments deposited with the Trustee), 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 of general circulation in the Borough of Manhattan, The City of New
York, and each Place of Payment or mailed to each such Holder, or both, 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 or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date
not more than four months after the end of each fiscal year of the Company
ending after the date hereof, an Officers' Certificate stating whether or not to
the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture, and, if the Company shall be in default, specifying all such
defaults and the nature thereof of which they may have knowledge.
The Company shall file with the Trustee written notice of the
occurrence of any default or Event of Default.
SECTION 1005. Existence.
Subject to Article VIII, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the 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 and is not reasonably likely to be disadvantageous in any
material respect to the Holders.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition applicable to the Debt Securities of any series that
is determined pursuant to Section 301 to be subject to this provision if, before
the time for such compliance the Holders of at least a majority in principal
amount of the Debt Securities at the time Outstanding shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
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SECTION 1007. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions 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 Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in the terms of such Debt Securities
and this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Debt 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 Debt Securities (or if the Debt 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 Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt 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 Debt
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by the terms of such Debt
Securities and the first paragraph of 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 part arising out of or in connection with actions taken
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or omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt 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 301 for Debt
Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all of the Debt Securities of any series,
the Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount and the tenor
and terms of the Debt Securities of any series to be redeemed. In the case of
any redemption of Debt Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Debt Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to be
Redeemed.
Except as otherwise specified as contemplated by Section 301
for Debt Securities of any series, if less than all the Debt Securities of any
series with like tenor and terms are to be redeemed, the particular Debt
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series with like tenor and terms not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple thereof
which is also an authorized denomination) of the principal amount of Registered
Securities or Bearer Securities (if issued in more than one authorized
denomination) of such series
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of a denomination larger than the minimum authorized denomination for Debt
Securities of such series.
The Trustee shall promptly notify the Company in writing of
the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt Securities
shall relate, in the case of any Debt Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to
be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only
at such place or places which are outside the United States, except as
otherwise provided in Section 1002,
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(7) that the redemption is for a sinking fund, if such is the
case, and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section
106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the
election of the Company shall be given by the Company, or, at the Company's
request, by the Trustee in the name and at the expense of the Company, and
shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, aggregate and hold in trust as provided in Section 1003) an amount
of money and/or, to the extent the Debt Securities to be redeemed are
denominated and payable in Dollars only, Eligible Instruments the payments of
principal and interest on which when due (and without reinvestment and providing
no tax liability will be imposed upon the Trustee or the Holders of the Debt
Securities to be redeemed) will provide money on or prior to the Redemption Date
in such amounts as will (together with any money irrevocably deposited in trust
with the Trustee, without investment) be sufficient to pay the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Debt Securities or portions thereof 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 1002, unless otherwise
specified as contemplated by Section 301.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities 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 and accrued
interest) such Debt 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 Debt
Security for redemption in accordance with said notice, such
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Debt Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or agency located outside
the United States except as otherwise provided in Section 1002), and provided
further, that 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 Debt Securities, or one or more Predecessor Securities, registered as
such on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer 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 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 Redemption
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 upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company, the
Security Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series
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and of like tenor and terms, 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 Debt Security so surrendered. 11
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified as contemplated by Section 301 for Debt Securities of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the term of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Debt Securities
of any series, the amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt
Securities.
The Company (1) may deliver Outstanding Debt 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 (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of
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the delivery or credit of Debt Securities in lieu of cash payments pursuant to
this Section 1202, the principal amount of Debt Securities to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the
Trustee need not call Debt Securities for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, provided, however, that
the Trustee or such Paying Agent shall at the request of the Company from time
to time pay over and deliver to the Company any cash payment so being held by
the Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Debt Securities purchased by the Company having an unpaid principal amount equal
to the cash payment requested to be released to the Company.
SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Debt Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash, the portion thereof, if any, which
is to be satisfied by crediting Debt Securities of that series pursuant to
Section 1202 and the basis for any such credit and, prior to or concurrently
with the delivery of such Officers' Certificate, will also deliver to the
Trustee any Debt Securities to be so credited and not theretofore delivered to
the Trustee. Not less than 30 days (unless a shorter period shall be
satisfactory to the Trustee) before each such sinking fund payment date the
Trustee shall select the Debt Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 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 1104. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Sections 1105, 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Debt 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 301 for Debt Securities of such series) in accordance with this Article.
SECTION 1303. Repayment of Debt Securities.
Each Debt 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 301.
SECTION 1213. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for
repayment shall, as conditions to such repayment, surrender the Debt 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 1002. Such notice, which
shall be irrevocable, shall specify the principal amount of such Debt Security
to be repaid, which shall be equal to the minimum authorized denomination for
such Debt Security or an integral multiple thereof, and shall identify the Debt
Security to be repaid and, in the case of a partial repayment of the Debt
Security, shall specify the denomination or denominations of the Debt Security
or Debt Securities of the same series to be issued to the Holder for the portion
of the principal of the Debt 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
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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 1002.
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, 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 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 Debt Security so
surrendered which is not to be paid; 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 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 Debt Securities
shall relate, in the case of any Debt Security repaid or to be repaid only in
part, to the portion of the principal of such Debt Security which has been or is
to be repaid.
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SECTION 1304. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt 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,
Debt Securities of such series from the Holders thereof who give notice and
surrender their Debt Securities in accordance with Section 1303.
SECTION 1305. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been
given and the Debt Securities so to be repaid having been surrendered as
aforesaid, such Debt Securities shall, unless purchased in accordance with
Section 1304, on the Repayment Date become due and payable at the price therein
specified and from and after the Repayment Date such Debt 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 Debt Securities and shall be obligated to pay
interest on such principal amount at the rate borne by such Debt Securities from
time to time until payment in full of such principal amount.
ARTICLE FOURTEEN
EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES
SECTION 1401. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant
to Section 301 provides for the exchange of Capital Securities for Debt
Securities of any series at the election of the Company or otherwise, Debt
Securities of such series shall be exchanged for Capital Securities in
accordance with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
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SECTION 1402. Exchange of Capital Securities for Debt
Securities at Stated Maturity.
At the Stated Maturity of Debt Securities of any series which
may be exchanged, subject to prepayment prior to such Stated Maturity on the
Capital Exchange Date selected by the Company for Debt Securities of such
series, as described below, early exchange pursuant to Section 1403 or payment
in cash pursuant to Section 502, 1416 or 1417, the Company shall exchange
Capital Securities with a Market Value equal to the principal amount of the
Outstanding Debt Securities of such series for the Debt Securities of such
series in whole.
The Company shall give notice in the manner provided in
Section 106 to Holders of the Debt Securities of any series to be exchanged, the
Trustee and the Capital Exchange Agent as to the type of Capital Securities to
be exchanged for the Debt Securities of such series on the Capital Exchange Date
for Debt Securities of such series. Such notice shall include a form of Capital
Security Election Form substantially as set forth in Section 1409, shall make
the statements and contain the information included in Section 1404(a), and
shall be given no less than 90 days prior to the Stated Maturity of such Debt
Securities. Notice of such Capital Exchange Date, together with the amount of
Capital Securities being exchanged for each $1,000 principal amount of Debt
Securities of such series, or the minimum denomination of the Debt Securities of
such series, if larger, shall also be given by the Company in the manner
required by Section 1404(b) not less than three Business Days prior to such
Capital Exchange Date.
The Capital Exchange Date for any prepayment of Debt
Securities of each series may be selected by the Company to be any date between
a date 60 days prior to the Stated Maturity of such Debt Securities and such
Stated Maturity, inclusive, and to be the date of the closing of the Secondary
Offering for Debt Securities of such series. In the event the Company fails to
effect such Secondary Offering, the Capital Exchange Date will be the Stated
Maturity of the Debt Securities of such series. Notice of each such Capital
Exchange Date, together with the amount of Capital Securities being exchanged
for each $1,000 principal amount of Debt Securities of such series, or the
minimum denomination of the Debt Securities of such series, if larger, shall
also be given by the Company in the manner required by Section 1404(b) not less
than three Business Days prior to such Capital Exchange Date.
The Company will effect each Secondary Offering such that the
closing of the Secondary Offering will occur on the Capital Exchange Date.
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SECTION 1403. Right of Early Exchange of Capital Securities
for Debt Securities.
The Debt Securities of any series to be exchanged may be
exchanged at the election of the Company, as a whole or from time to time in
part, prior to the Stated Maturity thereof for Capital Securities with a Market
Value equal to the principal amount of such Debt Securities on any early Capital
Exchange Date, together with accrued interest to such Capital Exchange Date.
The Company shall give notice in the manner provided in
Section 106 to Holders of the Debt Securities of any series to be exchanged, the
Trustee and the Capital Exchange Agent not less than 90 days nor more than 120
days prior to any early Capital Exchange Date for Debt Securities of such
series, which notice shall include a form of Capital Security Election Form
substantially as set forth in Section 1409 and make the statements and contain
the information included in Section 1404(a). Notice of each such early Capital
Exchange Date, together with the amount of Capital Securities being exchanged
for each $1,000 principal amount of Debt Securities of such series, or the
minimum denomination of such series, if larger, shall also be given by the
Company in the manner required by Section 1404(b) not less than three Business
Days prior to such early Capital Exchange Date.
The Company may at its option accelerate any such Capital
Exchange Date within the 60-day period prior to such Capital Exchange Date by
giving notice of such accelerated Capital Exchange Date, together with the
amount of Capital Securities being exchanged for each $1,000 principal amount of
Debt Securities of such series, or the minimum denomination of such series, if
larger, in the manner required by Section 1404(b) not less than three Business
Days prior to such accelerated Capital Exchange Date.
The Company will effect each Secondary Offering such that the
closing of such Secondary Offering will occur on the Capital Exchange Date.
SECTION 1404. Notices of Exchange.
(a) All notices of exchange subject to this paragraph shall
state:
(1) the type of Capital Securities to be exchanged for the
Debt Securities of such series on the Capital Exchange Date for Debt Securities
of such series;
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(2) the proposed Capital Exchange Date;
(3) that each Holder of Debt Securities of such series being
exchanged will receive on such Capital Exchange Date accrued and unpaid
interest in cash and may elect to receive on such Capital Exchange Date
Capital Securities with a Market Value equal to the principal amount of
the Debt Securities of such series owned by such Holder and that, in
the absence of any such election by the Holder, such Holder will be
deemed to have received on such Capital Exchange Date Capital
Securities having such Market Value and to have elected to have such
Capital Securities sold for such Holder by the Company in the related
Secondary Offering for cash proceeds to such Holder on such Capital
Exchange Date equal to the aggregate principal amount of all Debt
Securities of such series being exchanged owned by such Holder;
(4) that on such Capital Exchange Date the Capital Exchange
Price will become due and payable upon each such Debt Security to be
exchanged and that interest thereon will cease to accrue on and after
said date;
(5) if less than all the Outstanding Debt Securities of any
series are to be exchanged, the identification and principal amount of
the particular Debt Securities to be exchanged;
(6) that each Holder for whom Capital Securities are being
offered in the Secondary Offering shall be deemed to have appointed the
Company its attorney-in-fact to execute any and all documents and
agreements the Company deems necessary or appropriate to effect such
Secondary Offering;
(7) (A) that the Company will assume, unless advised to the
contrary in writing within 30 days after the date of notice of
exchange, that the Capital Securities are to be offered for the account
of the Holder, that such Holder has not held any position, office or
other material relationship with the Company within three years
preceding the Secondary Offering, that the Holder owns no other Capital
Securities, and that after completion of the Secondary Offering the
Holder will own less than one percent of the class of such Capital
Securities, and (B) that if any of these assumptions is not correct,
the Holder shall promptly so advise the Company;
(8) the Place or Places of Capital Exchange;
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(9) that Bearer Securities may be surrendered for payment or
exchange only at a Place or Places of Capital Exchange which are
outside the United States, except as otherwise provided in Section
1002; and
(10) the CUSIP number, if any.
(b) Each notice of exchange subject to this paragraph shall be
given in the manner provided in Section 106 to each Holder of Debt Securities to
be exchanged, and the Company shall forthwith give such notice by telephone to
the Trustee and the Capital Exchange Agent, promptly confirmed in writing.
(c) (1) Except as may otherwise be specified pursuant to
Section 301 for Debt Securities of any series, if less than all the Debt
Securities of any series are to be exchanged, the Company shall at least 135
days prior to the related Capital Exchange Date (unless a shorter period shall
be satisfactory to the Trustee) notify the Trustee of such Capital Exchange Date
and of the principal amount of Debt Securities of such series to be exchanged
and the particular Debt Securities to be exchanged shall be selected not more
than 135 days prior to the related Capital Exchange Date by the Trustee, from
the Outstanding Debt Securities of such series not previously exchanged, by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for exchange of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Registered or Bearer Securities of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
In any case where Debt Securities of such series are
registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one Debt
Security of such series.
(2) The Trustee shall promptly notify the Company in writing
of the Debt Securities selected for exchange and, in the case of any Debt
Securities selected for partial exchange, the principal amount thereof to be
exchanged.
(3) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the exchange of Debt Securities
shall relate, in the case of any Debt Securities exchanged or to be exchanged
only in part, to the portion of the principal amount of such Debt Security which
has been or is to be exchanged.
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SECTION 1405. Rights and Duties of Holders of Debt Securities
to be Exchanged for Capital Securities.
(a) Subject to Section 503, and without prejudice to the
rights pursuant to Section 1413 of Holders of Debt Securities of any series to
be exchanged, no Holder of Debt Securities of such series shall be entitled to
receive any cash from the Company on any Capital Exchange Date or at the Stated
Maturity of any Debt Security of such series except from the proceeds of the
sale of such Holder's Capital Securities in the related Secondary Offering and
except as provided herein with respect to fractional Capital Securities, amounts
equal to expenses of the sale in the related Secondary Offering of such Capital
Securities, accrued and unpaid interest and acceleration upon an Event of
Default. In the event that the Company does not effect such Secondary Offering,
such Holder will receive Capital Securities with a Market Value equal to the
principal amount of Debt Securities of such series owned by such Holder which
are subject to such exchange and not cash other than in lieu of any fractional
Capital Securities and for accrued and unpaid interest, without prejudice to
such Holder's rights pursuant to Section 1413.
(b) Each Holder for whom Capital Securities are being offered
in the Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the Company
deems necessary or appropriate to effect such Secondary Offering.
(c) Unless advised to the contrary in writing within 30 days
following the date of the notice described in Section 1404(a) by any Holder for
whom Capital Securities are being offered in the Secondary Offering, the Company
shall assume for the purposes of any Secondary Offering that the Capital
Securities are to be offered for the account of such Holder, that such Holder
has not held any position, office or other material relationship with the
Company within three years preceding the Secondary Offering, that such Holder
owns no other Capital Securities, and that after completion of the Secondary
Offering such Holder will own less than one percent of the class of such Capital
Securities.
(d) Each Holder for whom Capital Securities are being offered
in the Secondary Offering agrees to indemnify and hold harmless the Company, any
other Holder, and any underwriter, agent or other similar person from and
against any and all losses, claims, damages and liabilities resulting from or
based upon any untrue statement or alleged untrue statement of any material fact
contained in any notice of exchange, any
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offering memorandum or selling document or registration statement relating to
the Secondary Offering, any preliminary prospectus or prospectus contained
therein, or any amendment thereof or supplement thereto, or resulting from or
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, which untrue statement, alleged untrue statement, omission or
alleged omission is made therein (i) in reliance upon and in conformity with any
written information furnished to the Company by or on behalf of any such Holder
specifically for use in connection with the preparation thereof or (ii) because
of such Holder's failure to advise the Company in writing that any of the
assumptions described in Section 1404(a)(7)(A) and Subsection (c) of this
Section is incorrect.
(e) In order for any Holder who has duly returned a Capital
Security Election Form to receive Capital Securities on any Capital Exchange
Date for any Debt Security of any series, (1) the Holder of any Registered
Security to be exchanged shall surrender such Debt Security (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder of any Registered Security or his attorney duly authorized in
writing) to the Capital Exchange Agent on the Capital Exchange Date, and (2) the
Holder of any Bearer Security to be exchanged shall surrender such Debt Security
and all unmatured coupons and all matured coupons in default with the Capital
Security Election Form at a Place of Capital Exchange outside the United States
designated pursuant to Section 1404(a)(8) except as otherwise provided in
Section 1002. If the Holder of a Bearer Security is unable to produce any such
Debt Security or coupons, the surrender of such Debt Security 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 Capital
Exchange Agent harmless in respect of such Debt Security or coupons. Except as
provided in Section 307, no payment or adjustment shall be made upon any
exchange on account of any interest accrued on any Debt Securities surrendered
for exchange or on account of any dividends or interest on the Capital
Securities issued upon exchange.
(f) Debt Securities of any series to be exchanged shall be
deemed to have been exchanged on the Capital Exchange Date therefor in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Debt Securities as Holders shall cease (subject to the
provisions of Section 307 and without prejudice to the rights of Holders of Debt
Securities of such series pursuant to Section 1413), and the
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Person or Persons entitled to receive the Capital Securities issuable upon such
exchange shall be treated for all purposes as the record holder or holders of
such Capital Securities at such time.
SECTION 1406. Election to Exchange.
The election of the Company to exchange Capital Securities for
Debt Securities pursuant to Section 1403 shall be evidenced by a Board
Resolution.
SECTION 1407. Deposit of Capital Exchange Price.
On any Capital Exchange Date for Debt Securities of any series
which may be exchanged, the Company shall deposit with the Trustee or with a
Capital Exchange Agent in the Borough of Manhattan, The City of New York (or, if
the Company is acting as Capital Exchange Agent, segregate and hold in trust as
provided in Section 1003) Capital Securities and an amount of money which
together are sufficient to pay the Capital Exchange Price of, and (except if
such Capital Exchange Date shall be an Interest Payment Date) accrued interest
on, all the Debt Securities of such series or portions thereof which are to be
exchanged on that date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Capital Exchange Agent or Capital Exchange
Agents located outside the United States except as otherwise provided in Section
1002, unless otherwise specified as contemplated by Section 301.
SECTION 1408. Debt Securities Due on Capital Exchange Date;
Debt Securities Exchanged in Part.
Notice of exchange having been given as aforesaid, the Debt
Securities of any series so to be exchanged shall, on the Capital Exchange Date
for such Debt Securities, become due and payable at the Capital Exchange Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Capital Exchange Price and accrued interest) Debt
Securities of such series to be exchanged shall cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities to be exchanged,
except to the extent provided below, shall be void. Upon surrender of any Debt
Security of such series for exchange in accordance with said notice, such Debt
Security shall be paid by the Company at the Capital Exchange Price, together
with accrued interest to the Capital Exchange Date; provided, however, that if
such Capital Exchange Date is an Interest Payment Date, the interest payable on
such date shall be paid to the Holder of Debt Securities of such series
according to the terms of the Debt Securities of
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such series and the provisions of Section 307; and provided further, that
exchanges of Bearer Securities shall be made only and installments of interest
on Bearer Securities whose Stated Maturity is on or prior to the Capital
Exchange Date shall be payable only at an office or agency located outside the
United States except as otherwise provided in Section 1002 and, unless otherwise
specified as contemplated by Section 301, only upon presentation and surrender
of those Bearer Securities and coupons.
If any Bearer Security surrendered for exchange shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Capital Exchange Price an
amount equal to the face amount of all missing coupons, or the surrender of such
missing 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 Capital Exchange Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to the Trustee or Capital Exchange Agent any
such missing coupon in respect of which a deduction shall have been made from
the Capital Exchange Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest on Bearer Securities shall be
payable only at an office or agency located outside of the United States except
as otherwise provided in Section 1002.
If any Debt Security of any series called for exchange shall
not be so paid or exchanged upon surrender thereof for exchange, the principal
shall, until paid, bear interest from such Capital Exchange Date at the rate or
rates prescribed therefor in such Debt Security; provided, however, that in the
case of Bearer Securities, any such principal and interest thereon shall be paid
at an office or agency located outside the United States except as otherwise
provided in Section 1002.
Any Registered Security which is to be exchanged only in part
shall be surrendered as provided herein (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing) and the Company shall execute, the Trustee
shall authenticate and there shall be delivered to the Holder of such Debt
Security without service charge a new Registered Security or Securities of the
same series, of any authorized denomination or denominations as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unexchanged portion of principal of the Debt Security so surrendered. Any Bearer
Security which is to be exchanged only in part shall be surrendered as provided
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herein and the Company shall execute, the Trustee shall authenticate and there
shall be delivered to the Holder of such Debt Security without service charge a
new Registered Security or Securities or new Bearer Security or Securities (and
all appurtenant unmatured coupons and coupons in default) or any combination
thereof of the same series, of any surrendered denomination or denominations as
requested by such Holder in aggregate principal amount equal to and in exchange
for the unexchanged portion of principal of the Debt Security so surrendered;
provided, however, 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 in exchange for Bearer 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 then
in effect and the Company has delivered to the Trustee a Company Order directing
the Trustee not to make such exchanges thereafter unless and until the Company
delivers to the Trustee a subsequent Company Order to the contrary. The Company
shall deliver copies of such Company Orders to the Security Registrar.
SECTION 1409. Form of Capital Security Election Form.
The form of Capital Security Election Form shall be
substantially as follows with such additions, deletions or changes thereto as
may be approved by the Company:
CAPITAL SECURITY ELECTION FORM
To: [Insert Names and Addresses
of Capital Exchange Agents]
The undersigned Holder of [insert title of Debt Security]
("Debt Securities") of Star Banc Corporation hereby elects to receive on the
Capital Exchange Date determined pursuant to the Indenture dated as of
__________, ____ ("Indenture"), between Star Banc Corporation and
____________________, as Trustee, and referred to in the notice of exchange
published or delivered to the undersigned with this Capital Security Election
Form, Capital Securities of Star Banc Corporation with a Market Value equal to
the principal amount of the Debt Securities being exchanged owned by the
undersigned Holder and, in the case of Bearer Securities, delivered herewith
together with all coupons appertaining thereto. Unless this Capital Security
Election Form together with, in the case of Bearer Securities,
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such Bearer Securities and coupons, is received by any Capital Exchange Agent
named above at an address shown above on or prior to ________________________,
the Holder will be deemed to have elected to participate in the sale of the
Holder's Capital Securities in the Secondary Offering and will receive cash on
the Capital Exchange Date in an amount equal to the principal amount of all Debt
Securities being exchanged owned by the Holder. All terms used herein and not
otherwise defined herein shall have the meanings specified in the Indenture.
Dated _____________ ___________________________________
Name of Holder
SECTION 1410. Fractional Capital Securities.
No fractional Capital Securities shall be issued upon exchange
for any Debt Securities. If more than one Debt Security of any series shall be
surrendered for exchange at one time by the same Holder, the amount of all
Capital Securities which shall be issuable upon exchange thereof shall be
computed on the basis of the aggregate principal amount of Debt Securities of
such series so surrendered. In lieu of issuing any fractional Capital Security,
the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the Market Value of the Capital Security.
SECTION 1411. Company to Obtain Governmental and Regulatory
Approvals.
The Company covenants that if any Capital Securities required
to be exchanged for Debt Securities hereunder require registration with or
approval of any governmental authority under any federal or state law, or any
national securities exchange, before such Capital Securities may be issued, the
Company will in good faith and as expeditiously as possible endeavor to cause
such Capital Securities to be duly registered or approved, as the case may be;
PROVIDED, HOWEVER, that nothing in this Section shall be deemed to affect in any
way the obligation of the Company to exchange Capital Securities for Debt
Securities as provided in this Article.
SECTION 1412. Taxes on Exchange.
The Company will pay any and all transfer, stamp or similar
taxes that may be payable in respect of the issue or delivery of Capital
Securities in exchange for Debt Securities pursuant hereto.
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SECTION 1413. Covenants as to Capital Securities and
Secondary Offering.
(a) The Company covenants that it will issue, or cause to be
issued, Capital Securities of the type, in the amounts and at the times required
by this Indenture.
(b) The Company covenants that all Capital Securities which
may be issued in exchange for Debt Securities will upon issuance be duly and
validly issued and, if applicable, fully paid and nonassessable.
(c) The Company unconditionally undertakes to sell Capital
Securities in each Secondary Offering (and to bear all expenses of each
Secondary Offering, including underwriting discounts and commissions) at the
times and in the manner required by this Indenture unless all Holders have duly
elected to receive Capital Securities on the related Capital Exchange Date.
(d) The Company agrees to indemnify and hold harmless in
connection with any Secondary Offering any Holder for the account of whom
Capital Securities are being offered and sold from and against any and all
losses, claims, damages and liabilities resulting from or based upon any untrue
statement or alleged untrue statement of any material fact contained in any
notice of exchange, any offering memorandum or selling document or registration
statement relating to the Secondary Offering, any preliminary prospectus or
prospectus contained therein, or any amendment thereof or supplement thereto, or
resulting from or 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, or resulting from the Company's failure to comply with
Section 1411; provided, however, the Company will 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 any such untrue statement, alleged untrue statement, omission or
alleged omission made therein (i) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any such Holder
specifically for use in connection with the preparation thereof or (ii) because
of such Holder's failure to advise the Company in writing that any of the
assumptions described in Section 1404(a)(7)(A) is incorrect. In connection with
any Secondary Offering, the Company agrees to obtain appropriate indemnification
of any Holder for the account of whom Capital Securities are being offered and
sold in any Secondary Offering from any underwriter, agent or other similar
person.
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SECTION 1414. Provision in Case of Consolidation, Merger or
Transfer of Assets.
In case of any consolidation of the Company with, or merger of
the Company into, any other corporation (other than a consolidation or merger in
which the Company is the continuing corporation), or in case of any conveyance
or transfer of the properties and assets of the Company substantially as an
entirety, the corporation formed by such consideration or the corporation into
which the Company shall have been merged or the corporation which shall have
acquired such assets of the Company, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Debt Security then Outstanding shall have the right thereafter to receive
securities of such successor on the Capital Exchange Date for such Debt Security
with a Market Value equal to the principal amount of such Debt Security. The
above provisions of this Section shall similarly apply to successive
consolidations, mergers, conveyances or transfers.
SECTION 1415. Responsibility of Trustee.
The Trustee shall not at any time be under any duty or
responsibility to any Holder of Debt Securities of any series to be exchanged to
determine the Market Value of any Capital Securities delivered in exchange for
Debt Securities of such series and may rely on and shall be entitled to receive
prior to any Capital Exchange Date for Debt Securities of such series an
Officers' Certificate of the Company as to the Market Value of the Capital
Securities being exchanged for the Debt Securities of such series and the amount
of Capital Securities being exchanged for each $1,000 principal amount of Debt
Securities of such series or the minimum denomination of such series, if larger,
and that such Capital Securities qualify as Capital Securities under the
definition thereof contained herein. The Trustee shall not be accountable with
respect to the validity or value (or the kind or amount) of any Capital
Securities which may at any time be issued or delivered in exchange for any Debt
Security; and the Trustee does not make any representation with respect thereto.
The Trustee shall not be responsible for any failure of the Company to issue,
transfer or deliver any Capital Securities or Capital Security certificates or
other securities or property upon the surrender of any Debt Security for the
purpose of exchange or to comply with any of the covenants of the Company
contained in this Article.
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SECTION 1416. Revocation of Obligation to Exchange Capital
Securities for Debt Securities.
The Company's obligations to exchange Capital Securities for
Debt Securities of any series as provided in Section 1402 is absolute and
unconditional; provided, however, that such obligation may be revoked at the
option of the Company at any time on not less than 60 days' prior notice given
in the manner provided in Section 106 to the Holders of Debt Securities of such
series, the Trustee and the Capital Exchange Agent, if the Company shall
determine that under then regulations of the Company's Primary Federal Regulator
either the Debt Securities are no longer includable as capital or it is no
longer necessary for the Company to be obligated to exchange Capital Securities
for Debt Securities in order for the Debt Securities to maintain the same
capital treatment as they are then receiving under the regulations or if
approval of the Primary Federal Regulator is obtained for such revocation.
In the event such obligation is revoked
(a) the Company will pay the Debt Securities of such series in
cash at 100% of the principal amount thereof on the Stated Maturity thereof, and
(b) the Company may, at any time on or after a date selected
by the Company, on not less than 60 days' prior notice given in the manner
provided in Section 106 to the Holders of Debt Securities of such series and the
Trustee, redeem the Debt Securities of such series, in whole or in part, for
cash at 100% of the principal amount thereof, plus accrued interest to the
Redemption Date.
SECTION 1417. Optional Securities Funds.
(a) (1) With respect to Debt Securities of any series for
which an Officers' Certificate or supplemental indenture pursuant to Section 301
provides that the Debt Securities of such series are exchangeable for Capital
Securities, the Company may elect to establish a fund (referred to herein as the
"Optional Securities Funds") to which funds may at any time be designated by the
Company as provided in Section 1502 as if such Optional Securities Funds were
Securities Funds (as defined in Article Fifteen) to be used to pay the principal
of the Debt Securities of such series.
(2) Notwithstanding any provisions to the contrary contained
in this Indenture or in the Debt Securities of any series, neither funds
designated as Optional Securities Funds
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nor any other property from time to time held as Optional Securities Funds shall
be deemed to be for any purpose property of the Holders or trust funds for the
benefit of the Holders, and the Optional Securities Funds shall not constitute
security for the payment of the Debt Securities.
(b) In lieu of, or in addition to, any exchange of Capital
Securities for Debt Securities of any series which may be made in accordance
with the provisions of Sections 1402 and 1403, the Company may elect to redeem
the Debt Securities of such series in accordance with the provisions of Section
1106 and the terms of the Debt Securities of each series, in whole or in part,
by paying the principal of such Debt Securities with funds designated as
Optional Securities Funds at a price equal to the percentage of the principal
amount established in the terms of the Debt Securities of such series on the
Redemption Date of the Debt Securities to be so redeemed, and (except if such
Redemption Date shall be an Interest Payment Date) by paying accrued interest on
such Debt Securities. If such Redemption Date is an Interest Payment Date, the
interest payable on such date shall be paid to the Holder of Debt Securities of
such series according to the terms of the Debt Securities of such series and the
provisions of Section 307.
(c) The Company shall give notice of such proposed redemption
in the manner provided in Section 106 to the Holders of the Debt Securities of
such series within the time prescribed for the giving of the initial notice in
Section 1402 or 1403, depending upon the Redemption Date selected by the
Company. Such notice shall state the Redemption Date and the place or places
where the Debt Securities of the series to be paid are to be surrendered for
payment; provided, however, if such redemption is of less than all of the Debt
Securities of such series and is to be made on a Capital Exchange Date specified
in accordance with Section 1402 or 1403, then such notice may be incorporated
into any initial notice of such Capital Exchange Date and provided that no
notice of any redemption may be given unless there are sufficient Optional
Securities Funds to pay the principal amount of the Debt Securities to be
redeemed.
(d) If less than all the Debt Securities of any series are to
be so redeemed, then Sections 1404(c) and 1408 shall apply to the redemption in
the same manner as if such Debt Securities were to be exchanged for Capital
Securities.
(e) Funds designated as Optional Securities Funds shall be
released from such designation under the circumstances described in Section
1503.
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ARTICLE FIFTEEN
SECURITIES FUNDS
SECTION 1501. Creation of Securities Funds.
A fund (the "Securities Funds") will be established when
specified in an Officers' Certificate or supplemental indenture pursuant to
Section 301 for the Debt Securities of any series pursuant to which funds may be
designated by the Company as provided in Section 1502, to be used to pay the
principal of the Debt Securities of that series.
Notwithstanding any provision to the contrary contained in
this Indenture or in the Debt Securities of any series, neither funds designated
as Securities Funds nor any other property from time to time held as Securities
Funds shall be deemed to be for any purpose property of the Holders or trust
funds for the benefit of the Holders, and the Securities Funds shall not
constitute security for the payment of the Debt Securities.
SECTION 1502. Designations of Securities Funds.
The Securities Funds will consist of amounts equal to (i) the
net proceeds of the sale of Capital Securities for cash from time to time after
the date of initial issuance of the Debt Securities of any series for which
funds may be designated by the Company as provided in this Section, and (ii) the
market value, as determined by the Company, of Capital Securities sold from time
to time after the date of initial issuance of the Debt Securities of such series
in exchange for other property, less the expenses to effect any such exchanges,
and (iii) other funds which the regulations of the Primary Federal Regulator
then permit for the payment of principal of "mandatory convertible securities
(equity commitment notes)" as defined in such regulations; provided that (x) the
Company has designated such amounts as Securities Funds on its books and records
in the manner required by the Primary Federal Regulator, and (y) there shall be
deducted from the Securities Funds an amount equal to the amount of any funds
used to redeem or repay the Debt Securities of such series for which Securities
Funds are required to be designated or any similar securities.
SECTION 1503. Covenant of the Company to Obtain Securities
Funds.
Notwithstanding anything else contained herein, the Company
hereby covenants and agrees that with regard to the
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Debt Securities of any series which by its terms requires the designation of
Securities Funds (i) by the Interest Payment Date which occurs on or next
preceding the date when one-third of the period from the date of issuance of the
Debt Securities of such series to their Stated Maturity has elapsed, it will
have obtained Securities Funds in an amount that will equal at least one-third
of the original aggregate principal amount of the Debt Securities of such series
(or such lesser amount as the Primary Federal Regulator may permit from time to
time) and will have prepared and delivered to the Trustee an Officers'
Certificate to the foregoing effect, (ii) by the Interest Payment Date which
occurs on or next preceding the date when two-thirds of the period from the date
of issuance of the Debt Securities of such series to their Stated Maturity has
elapsed, it will have obtained Securities Funds in an amount that will equal at
least two-thirds of the original aggregate principal amount of the Debt
Securities of such series (or such lesser amount as the Primary Federal
Regulator may permit from time to time) and will have prepared and delivered to
the Trustee an Officers' Certificate to the foregoing effect, and (iii) by 60
days prior to the Stated Maturity of the Debt Securities of such series, it will
have obtained Securities Funds in an amount that will equal not less than the
original aggregate principal amount of the Debt Securities of such series (or
such lesser amount as the Primary Federal Regulator may permit from time to
time) and will have prepared and delivered to the Trustee an Officers'
Certificate to the foregoing effect; provided, however, that such covenant and
agreement of the Company shall be cancelled and amounts theretofore designated
as Securities Funds will be released from such designation in the event and to
the extent that the Company shall determine that under the regulations of the
Company's Primary Federal Regulator either the Debt Securities are no longer
includable as capital or it is no longer necessary for the Company to be
obligated to pay the principal of the Debt Securities out of Securities Funds in
order for the Debt Securities to maintain the same capital treatment as they are
then receiving under such regulations, in the event and to the extent that
approval of the Primary Federal Regulator is obtained for such cancellation and
release or in the event and to the extent that the Company shall have exchanged
or redeemed such Debt Securities pursuant to the terms of such Debt Securities
of such series from a source other than amounts designated as Securities Funds.
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ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1601. Purposes For Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in
part as Bearer Securities, a meeting of Holders of Debt 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 Debt Securities of such series.
SECTION 1602. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Debt Securities of any series issuable as Bearer Securities for any purpose
specified in Section 1601, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Debt 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 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) 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 Debt Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Debt Securities of such series for any purpose
specified in Section 1601, 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 Debt Securities
of such series in the amount above specified, as the case may be, may determine
the time and the place in 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 (a) of this Section.
SECTION 1603. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt
Securities of any series, a Person shall be (1) a Holder
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of one or more Outstanding Debt 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 Debt 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 Debt 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 1604. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Debt Securities of a series shall constitute a quorum for a
meeting of Holders of Debt 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 not less
than a majority in principal amount of the Outstanding Debt Securities of a
series, the Persons entitled to vote a majority in principal amount of the
Outstanding Debt 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 Debt
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 this reconvening of any adjourned meeting shall be
given as provided in Section 1602(a), 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 Debt Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, 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 of majority in principal amount of the Outstanding Debt Securities
of that series, provided however, that, except as limited by the proviso to
Section 902, any resolution with respect to any consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
majority in principal amount
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of the Outstanding Debt 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 a majority in principal amount of
the Outstanding Debt Securities of that series; and provided, further, that,
except as limited by the proviso to Section 902, 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 Debt 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 Debt Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Debt Securities of any series duly held in accordance with this
Section shall be binding on all the Holders of Debt Securities of such series
and the related coupons, whether or not present or represented at the meeting.
SECTION 1605. 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 Debt Securities of such series in regard to proof of
the holding of Debt Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104 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 104 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 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the
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meeting shall have been called by the Company or by Holders of Debt Securities
as provided in Section 1602(b), in which case the Company or the Holders of Debt
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 Debt Securities of such
series represented at the meeting.
(c) At any meeting each Holder of a Debt 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 Debt Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Debt
Security challenged as not Outstanding and ruled by the 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 Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series
duly called pursuant to Section 1602 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 Debt Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further notice.
SECTION 1606. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Debt Securities of any series shall be by written ballots on which
shall be subscribed the signatures of the Holders of Debt Securities of such
series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Debt 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
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
Debt 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
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notice was given as provided in Section 1602 and, if applicable, Section 1601.
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
DEFEASANCE
SECTION 1701. Termination of Company's Obligations.
If this Section 1701 is specified, as contemplated by Section
301, to be applicable to any series of Debt Securities and if the Company
deposits irrevocably in trust with the Trustee money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due (and
without reinvestment and providing no tax liability will be imposed upon the
Trustee or the Holders of such Debt Securities) will provide money in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the principal of (and premium,
if any) and any installment of principal of (and premium, if any) or interest
when due on the Debt Securities of such series and any coupons appertaining
thereto and any mandatory sinking fund, repayment or analogous payments thereon
on the scheduled due dates therefor at the Stated Maturity thereof, the
Company's obligations under any covenant determined pursuant to Section 301 to
be subject to this Section shall terminate with respect to the Debt Securities
of the series for which such deposit was made; provided, however, that (i) no
Event of Default with respect to the Debt Securities of such series under
Section 501(1) or Section 501(2) or event that with notice or lapse of time or
both would constitute such an Event of Default shall have occurred and be
continuing on such date, (ii) such deposit will not result in a breach of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound, and (iii) such
termination shall not relieve the Company of its obligations under the Debt
Securities of such series and this Indenture to pay when due the principal of
(and premium, if any) and interest and additional amounts on such Debt
Securities and any coupons appertaining thereto if such Debt Securities or
coupons are not paid (or payment is not
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provided for) when due from the money and Eligible Instruments (and the proceeds
thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under any covenant determined pursuant to Section 301 to be subject to this
Section that the Company deliver to the Trustee (i) an Opinion of Counsel to the
effect that: (a) Holders of Debt Securities of such series and any coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and termination and (b) such Holders
(and future Holders) will be subject to tax in the same amount, manner and
timing as if such deposit and termination has not occurred, (ii) an Officers'
Certificate to the effect that under the laws in effect on the date such money
and/or Eligible Instruments are deposited with the Trustee, the amount thereof
will be sufficient, after payment of all Federal, state and local taxes in
respect thereof payable by the Trustee, to pay principal (and premium, if any)
and interest when due on the Debt Securities of such series and any coupons
appertaining thereto; and (iii) an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the defeasance contemplated in this Section have been complied with.
It shall be an additional condition to the deposit of cash
and/or Eligible Instruments and the termination of the Company's obligations
pursuant to the provisions of this Section under any covenant determined
pursuant to Section 301 to be subject to this Section, with respect to the Debt
Securities of any series then listed on the New York Stock Exchange, that the
Company deliver an Opinion of Counsel that the Debt Securities of such series
will not be delisted from the New York Stock Exchange as a result of such
deposit and termination.
After a deposit as provided herein, the Trustee shall, upon
Company Request, acknowledge in writing the discharge of the Company's
obligations pursuant to the provisions of this Section with respect to the Debt
Securities of such series under any covenant determined pursuant to Section 301
to be subject to this Section.
SECTION 1702. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the
Company upon Company Request any money or Eligible Instruments not required for
the payment of the principal of (and premium, if any) and interest on the Debt
Securities of
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any series and any related coupons for which money or Eligible Instruments have
been deposited pursuant to Section 1701 held by them at any time.
The Trustee and any Paying Agent shall promptly pay to the
Company upon Company Request any money held by them for the payment of principal
(and premium, if any) and interest that remains unclaimed for two years after
the Maturity of the Debt Securities for which a deposit has been made pursuant
to Section 1701. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1703. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the deposited
Eligible Instruments or the principal or interest received on such Eligible
Instruments.
ARTICLE EIGHTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1801. Debt Securities Subordinate to Senior Debt.
The Company covenants and agrees that anything in this
Indenture or the Debt Securities of any series to the contrary notwithstanding,
the indebtedness evidenced by the Debt Securities of each series and any coupons
appurtenant thereto is subordinate and junior in right of payment to all Senior
Debt to the extent provided herein, and each Holder of Debt Securities of each
series and coupons appurtenant thereto, by such Holder's acceptance thereof,
likewise covenants and agrees to the subordination herein provided and shall be
bound by the provisions hereof. Senior Debt shall continue to be Senior Debt and
entitled to the benefits of these subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Debt or extension or
renewal of the Senior Debt.
In the event that the Company shall default in the payment of
any principal of (or premium, if any) or interest on any Senior Debt when the
same become due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, upon written
notice of such default to the Company by the Holders of Senior Debt or any
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trustee therefor, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of (or premium, if any) or interest on any of the Debt
Securities, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Debt Securities.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of
creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Debt Securities or coupons appurtenant thereto on
account thereof. Any payment or distribution, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Debt Securities of any series or coupons
appurtenant thereto shall be paid or delivered directly to the holders of Senior
Debt in accordance with the priorities then existing among such holders until
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior Debt,
the Holders
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of the Debt Securities and coupons appurtenant thereto, together with the
holders of any obligations of the Company ranking on a parity with the Debt
Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest on the Debt Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Debt Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment
or distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan or reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior
Debt in full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each holder of
Senior Debt is hereby irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Debt shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Debt Securities by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Company and the Holders of
Debt Securities of each series, the obligation of the Company to pay to such
Holders the principal of (and premium, if any) and interest on such Debt
Securities and coupons appurtenant thereto or prevent the Trustee or the Holder
from exercising
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all rights, powers and remedies otherwise permitted by applicable law or
hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Debt to receive cash, securities or other
property otherwise payable or deliverable to the Holders.
Senior Debt shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Debt then outstanding. Upon the
payment in full of all Senior Debt, the Holders of Debt Securities of each
series and coupons appurtenant thereto, if any, shall be subrogated to all
rights of any holders of Senior Debt to receive any further payments or
distributions applicable to the Senior Debt until the indebtedness evidenced by
the Debt Securities of such series and coupons appertaining thereto, if any,
shall have been paid in full, and such payments or distributions received by
such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Debt shall, as between the Company and its creditors other than the holders of
Senior Debt, on the one hand, and such Holders, on the other hand, be deemed to
be a payment by the Company on account of Senior Debt, and not on account of the
Debt Securities of such series.
The provisions of this Section 1801 shall not impair any
rights, interests, remedies or powers of any secured creditor of the Company in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise
ranking on a parity with the Debt Securities or ranking junior to the Debt
Securities, shall not be deemed to prevent such obligations from constituting,
respectively, obligations ranking on a parity with the Debt Securities or
ranking junior to the Debt Securities.
SECTION 1802. Trustee and Holders of Debt Securities May Rely
on Certificate of Liquidating Agent; Trustee May Require Further Evidence as to
Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt.
Upon any payment or distribution of assets of the Company
referred to in this Article Eighteen, the Trustee and the Holders shall be
entitled to rely upon an order or decree made by any court of competent
jurisdiction in which such
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dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Eighteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee or representative on behalf of such holder) as evidence that such Person
is a holder of such Senior Debt (or is such a trustee or representative). In the
event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payments or distributions pursuant to this Article Eighteen,
the Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
as to the extent to which such Person is entitled to participate in such payment
or distribution, and as to other facts pertinent to the rights of such Person
under this Article Eighteen, and if such evidence is not furnished, the Trustee
may offer any payment to such Person pending judicial determination as to the
right of such Person to receive payment. The Trustee, however, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt.
SECTION 1803. Payment Permitted if No Default.
Nothing contained in this Article Eighteen or elsewhere in
this Indenture, or in any of the Debt Securities, shall prevent (a) the Company
at any time, except during the pendency of any dissolution, winding up,
liquidation or reorganization proceedings referred to in, or under the
conditions described in, Section 1801, from making payments of the principal of
(or premium, if any) or interest on the Debt Securities or (b) the application
by the Trustee or any Paying Agent of any moneys deposited with it hereunder to
payments of the principal of or interest on the Debt Securities, if, at the time
of such deposit, the Trustee or such Paying Agent, as the case may be, did not
have the written notice provided for in Section 1804 of any event prohibiting
the making of such deposit, or if, at the time of such deposit (whether or not
in trust) by the Company with the Trustee or any Paying Agent (other than the
Company) such payment would not have been prohibited by the provisions of this
Article, and the Trustee
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or any Paying Agent shall not be affected by any notice to the contrary received
by it on or after such date.
SECTION 1804. Trustee Not Charged with Knowledge of
Prohibition.
Anything in this Article Eighteen or elsewhere in this
Indenture contained to the contrary notwithstanding, the Trustee shall not at
any time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of money to or by the Trustee and shall be
entitled conclusively to assume that no such facts exist and that no event
specified in Section 1801 has happened, until the Trustee shall have received an
Officers' Certificate to that effect or notice in writing to that effect signed
by or on behalf of the holder or holders, or their representatives, of Senior
Debt who shall have been certified by the Company or otherwise established to
the reasonable satisfaction of the Trustee to be such holder or holders or
representatives or from any trustee under any indenture pursuant to which such
Senior Debt shall be outstanding. The Company shall give prompt written notice
to the Trustee and to the Paying Agent of any facts which would prohibit the
payment of money to or by the Trustee or any Paying Agent.
SECTION 1805. Trustee to Effectuate Subordination.
Each Holder of Debt Securities or coupons by such Holder's
acceptance thereof authorizes and directs the Trustee in such Holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior Debt as provided in
this Article and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1806. Rights of Trustee as Holder of Senior Debt.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt which
may at the time be held by it, to the same extent as any other holder of Senior
Debt and nothing in this Article shall deprive the Trustee of any rights as such
holder; provided that nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
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SECTION 1807. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if the Paying Agent
were named in this Article in addition to or in place of the Trustee, provided,
however, that Sections 1804 and 1806 shall not apply to the Company or any
Affiliate of the Company if the Company or such Affiliate acts as Paying Agent.
SECTION 1808. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Debt may, at any time or from
time to time and in their absolute discretion, change the manner, place or terms
of payment, change or extend the time of payment of, or renew or alter, any such
Senior Debt, or amend or supplement any instrument pursuant to which any such
Senior Debt is issued or by which it may be secured, or release any security
therefor, or exercise or refrain from exercising any other of their rights under
the Senior Debt including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Debt Securities or the
Trustee and without affecting the obligations of the Company, the Trustee or the
Holders of the Debt Securities under this Article.
ARTICLE NINETEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 1901. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant
to Section 301 provides that the Debt Securities of a series shall be
Convertible Securities, Debt Securities of such series shall be convertible in
accordance with their terms and
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(except as otherwise specified in such Officers' Certificate or supplemental
indenture) in accordance with this Article.
SECTION 1902. Right to Convert.
Subject to and upon compliance with the provisions of this
Article, the Holder of any Convertible Security shall have the right, at such
Holder's option, at any time prior to the close of business on the date set
forth in the Officers' Certificate delivered pursuant to Section 301 hereof (or
if such Convertible Security is called for redemption or submitted for
repayment, then in respect of such Convertible Security to and including but not
after the close of business on the Redemption or Repayment Date, as the case may
be, unless the Company shall default in the payment due) to convert the
principal amount of any such Convertible Security, or, in the case of any
Convertible Security of a denomination greater than $1,000, any portion of such
principal which is $1,000 or an integral multiple thereof, into that number of
fully paid and nonassessable shares of Common Stock (as such shares shall then
be constituted) obtained by dividing the principal amount of the Convertible
Security or portion thereof surrendered for conversion by the Conversion Price,
by surrender of the Convertible Security so to be converted in whole or in part
in the manner provided in Section 1903. Such conversion shall be effected by the
Company.
SECTION 1903. Exercise of Conversion Privilege; Delivery of
Common Stock on Conversion; No Adjustment for Interest or Dividends.
In order to exercise the conversion privilege, the Holder of
any Convertible Security to be converted in whole or in part shall surrender
such Convertible Security at an office or agency maintained by the Company
pursuant to Section 1002, accompanied by the funds, if any, required by the last
paragraph of this Section, together with written notice of conversion, in the
form provided on the Convertible Securities, that the Holder elects to convert
such Convertible Security or the portion thereof specified in said notice. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be
deliverable on such conversion shall be registered, and shall be accompanied by
transfer taxes, if required pursuant to Section 1908. Each Convertible Security
surrendered for conversion shall, unless the shares deliverable on conversion
are to be registered in the same name as the registration of such Convertible
Security, be duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company
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duly executed by, the Holder or such Holder's duly authorized attorney.
As promptly as practicable after the surrender of such
Convertible Security and the receipt of such notice and funds, if any, as
aforesaid, the Company shall deliver at such office or agency to such Holder, or
on such Holder's written order, a certificate or certificates for the number of
full shares deliverable upon the conversion of such Convertible Security or
portion thereof in accordance with the provisions of this Article and a check or
cash in respect of any fractional interest in respect of a share of Common Stock
arising upon such conversion as provided in Section 1904. In case any
Convertible Security of a denomination greater than the minimum denomination
shall be surrendered for partial conversion and subject to Section 302, the
Company shall execute and the Trustee shall authenticate and deliver to or upon
the written order of the Holder of the Convertible Security so surrendered,
without charge to such Holder, a new Convertible Security or Convertible
Securities in authorized denominations in an aggregate principal amount equal to
the unconverted portion of the surrendered Convertible Security.
Each conversion shall be deemed to have been effected on the
date on which such Convertible Security shall have been surrendered (accompanied
by the funds, if any, required by the last paragraph of this Section) and such
notice shall have been received by the Company, as aforesaid, and the person in
whose name any certificate or certificates for shares of Common Stock shall be
registrable upon such conversion shall be deemed to have become on said date the
holder of record of the shares represented thereby; provided however, that any
such surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person in whose name the certificates are to be
registered as the record holder thereof for all purposes on the next succeeding
day on which stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such Convertible Security
shall have been surrendered.
Any Convertible Security or portion thereof surrendered for
conversion during the period from the close of business on the Regular Record
Date for any Interest Payment Date to the opening of business on such Interest
Payment Date shall (unless such Convertible Security or portion thereof being
converted shall have been called for redemption or submitted for repayment on a
date in such period) be accompanied by payment, in legal tender or other funds
acceptable to the Company, of an amount equal to the interest otherwise payable
on such Interest
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Payment Date on the principal amount being converted; provided, however, that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the Convertible Securities. An amount
equal to such payment shall be paid by the Company on such Interest Payment Date
to the Holder of such Convertible Security on such Regular Record Date,
provided, however, that if the Company shall default in the payment of interest
on such Interest Payment Date, such amount shall be paid to the person who made
such required payment. Except as provided above in this Section, no adjustment
shall be made for interest accrued on any Convertible Security converted or for
dividends on any shares issued upon the conversion of such Convertible Security
as provided in this Article.
SECTION 1904. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing
fractional shares shall be delivered upon conversion of Convertible Securities.
If more than one Convertible Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be deliverable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Convertible Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
deliverable upon the conversion of any Convertible Security or Convertible
Securities, the Company shall make an adjustment therefor in cash at the current
market value of such fractional share of stock. The market value of a share of
Common Stock shall be the Closing Price on the Business Day immediately
preceding the day on which the Convertible Securities (or specified portions
thereof) are deemed to have been converted.
SECTION 1905. Conversion Price.
The Conversion Price shall be as specified in the form of
Convertible Security hereinabove set forth, subject to adjustment as provided in
this Article.
SECTION 1906. Adjustment to Conversion Price.
The Conversion Price shall be adjusted from time to time as
follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Common Stock in shares of its capital stock (whether shares
of Common Stock or of capital stock
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of any other class), (ii) subdivide or reclassify its outstanding Common Stock
into a greater number of securities (including Common Stock), or (iii) combine
or reclassify its outstanding Common Stock into a smaller number of securities
(including Common Stock), the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Holder of any Convertible Security
thereafter surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which such Holder would have owned or
have been entitled to receive after the happening of any of the events described
above had such Convertible Security been converted immediately prior to the
happening of such event. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case of a
dividend and shall become effective immediately after the effective date in the
case of a subdivision or combination. If, as a result of an adjustment made
pursuant to this subsection (a), the Holder of any Convertible Security
thereafter surrendered for conversion shall become entitled to receive shares of
two or more classes of capital stock of the Company, the Board of Directors of
the Company (whose determination shall be conclusive and shall be described in a
written statement filed with the Trustee and any conversion agent) shall
determine the allocation of the adjusted Conversion Price between or among
shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment
made pursuant to this subsection (a) of this Section 1906, the Holder of any
Convertible Security thereafter converted shall become entitled to receive any
shares or other securities of the Company other than shares of Common Stock,
thereafter the number of such other shares so received upon conversion of any
Convertible Security shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the shares of Common Stock contained in this Section 1906, and other
provisions of this Article Nineteen with respect to the shares of Common Stock
shall apply on like terms to any such other shares or other securities.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock (or securities
convertible into Common Stock) entitling them (for a period expiring within 45
days after such record date) to subscribe for or purchase Common Stock at a
price per share (or a conversion price per share) less than the current market
price per share of Common Stock (as defined in subsection (d) below) at such
record date, the Conversion Price in effect immediately prior thereto shall be
adjusted so that the
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same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to such record date by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares which the aggregate offering price of the
total number of shares so offered (or the aggregate initial conversion price of
the convertible securities so offered) would purchase at such current market
price, and of which the denominator shall be the number of shares of Common
Stock outstanding on such record date plus the number of additional shares of
Common Stock offered for subscription or purchase (or into which the convertible
securities so offered are initially convertible). Such adjustment shall be made
successively whenever such a record date is fixed, and shall become effective
immediately after such record date. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of Common Stock
at less than such current market price, and in determining the aggregate
offering price of such shares, there shall be taken into account any
consideration received by the Company for such rights or warrants, the value of
such consideration, if other than cash, to be determined by the Board of
Directors of the Company. Common Stock owned by or held for the account of the
Company or any majority owned subsidiary shall not be deemed outstanding for the
purpose of any adjustment required under this subsection (b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock evidences of its indebtedness or
assets (excluding regular quarterly or other periodic or recurring cash
dividends or distributions and cash dividends or distributions paid from
retained earnings of the Company or dividends or distributions referred to in
subsection (a) above) or rights or warrants to subscribe or purchase (excluding
those referred to in subsection (b) above), then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
such record date by a fraction of which the numerator shall be the current
market price per share (as defined in subsection (d) below) of the Common Stock
on such record date less the then fair market value (as determined by the Board
of Directors of the Company whose determination shall be conclusive, and
described in a certificate filed with the Trustee) of the portion of the assets
or evidences of indebtedness so distributed or of such rights or warrants
applicable to one share of Common Stock, and the denominator shall be the
current market price per share (as defined in subsection (d) below) of the
Common Stock. Such adjustment shall be made successively whenever such a record
date is fixed and shall become effective
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immediately after such record date. Notwithstanding the foregoing, in the event
that the Company shall distribute any rights or warrants to acquire capital
stock ("Rights") pursuant to this subsection (c), the distribution of separate
certificates representing such Rights subsequent to their initial distribution
(whether or not such distribution shall have occurred prior to the date of the
issuance of such Convertible Securities) shall be deemed to be the distribution
of such Rights for purposes of this subsection (c); provided that the Company
may, in lieu of making any adjustment pursuant to this subsection (c) upon a
distribution of separate certificates representing such Rights, make proper
provision so that each Holder of such Convertible Security who converts such
Convertible Security (or any portion thereof) (i) before the record date for
such distribution of separate certificates shall be entitled to receive upon
such conversion shares of Common Stock issued with Rights and (ii) after such
record date and prior to the expiration, redemption or termination of such
Rights shall be entitled to receive upon such conversion, in addition to the
shares of Common Stock issuable upon such conversion, the same number of such
Rights as would a holder of the number of shares of Common Stock that such
Convertible Security so converted would have entitled the holder thereof to
purchase in accordance with the terms and provisions of and applicable to the
Rights if such Convertible Security were converted immediately prior to the
record date for such distribution. Common Stock owned by or held for the account
of the Company or any majority owned subsidiary shall not be deemed outstanding
for the purpose of any adjustment required under this subsection (c).
(d) For the purpose of any computation under subsection (b)
and (c) above, the current market price per share of Common Stock at any date
shall be deemed to be the average of the daily Closing Prices for the thirty
consecutive days (which are not legal holidays as defined in Section 113)
commencing forty-five days (which are not legal holidays as defined in Section
113) before the day in question. The Closing Price for any day shall be (i) if
the Common Stock is listed or admitted for trading on any national securities
exchange, the last sale price (regular way), or the average of the closing bid
and ask prices if no sale occurred, of Common Stock on the principal securities
exchange on which the Common Stock is listed, or, if not listed or admitted to
trading on any national securities exchange, on the National Market System of
the National Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ"), (ii) if not listed or quoted as described in (i), the mean between
the closing high bid and low asked quotations of Common Stock reported by
NASDAQ, or any similar system or automated dissemination of quotations of
securities prices then in common use, if so quoted, or (iii) if not quoted as
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described in clause (ii), the mean between the high bid and low asked quotations
for Common Stock as reported by the National Quotation Bureau Incorporated if at
least two securities dealers have inserted both bid and asked quotations for
Common Stock on at least 5 of the 10 preceding days. If none of the conditions
set forth above is met, the Closing Price of Common Stock on any day or the
average of such Closing Prices for any period shall be the fair market value of
Common Stock as determined by a member firm of the New York Stock Exchange, Inc.
selected by the Company.
(e)(i) Nothing contained herein shall be construed to require
an adjustment in the Conversion Price as a result of the issuance of Common
Stock pursuant to, or the granting or exercise of any rights under, the Star
Banc Corporation Dividend Reinvestment and Optional Cash Payment Plan.
(ii) In addition, no adjustment in the Conversion Price shall
be required unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which by reason
of this subsection (e)(ii) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment, further provided, however,
that any adjustments which by reason of this subsection (e)(ii) are not
otherwise required to be made shall be made no later than 3 years after the date
on which occurs an event that requires an adjustment to be made or carried
forward.
(iii) All calculations under this Article Nineteen shall be
made to the nearest cent or to the nearest one-hundredth of a share, as the case
may be. Anything in this Section 1906 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section 1906, as it in its discretion shall
determine to be advisable in order that any stock dividends, subdivision of
shares, distribution of rights to purchase stock or securities, or distribution
of securities convertible into or exchangeable for stock hereafter made by the
Company to its shareholders shall not be taxable.
(f) Whenever the Conversion Price is adjusted, as herein
provided, the Company shall promptly file with the Trustee and any conversion
agent other than the Trustee an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the date on
which such adjustment becomes
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effective and shall mail such notice of such adjustment of the Conversion Price
to the Holder of each Convertible Security at such Holder's last address
appearing on the Security Register provided for in Section 305 of this
Indenture.
(g) In any case in which this Section 1906 provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (i) delivering to the
Holder of any Convertible Security converted after such record date and before
the occurrence of such event the additional shares of Common Stock deliverable
upon such conversion by reason of the adjustment required by such event over and
above the Common Stock deliverable upon such conversion before giving effect to
such adjustment and (ii) paying to such Holder any amount in cash in lieu of any
fraction pursuant to Section 1904, provided, however, that the Company shall
deliver to such Holder a due bill or other appropriate instrument evidencing
such Holder's rights to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment. If such event does not occur,
no adjustments shall be made pursuant to this Section 1906.
SECTION 1907. Effect of Reclassification, Consolidation,
Merger or Sale.
If any of the following events occur, namely (i) any
reclassification or change of outstanding shares of Common Stock deliverable
upon conversion of the Convertible Securities (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination, but including any change in the shares
of Common Stock into two or more classes or series of securities), (ii) any
consolidation or merger to which the Company is a party (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than a change
in par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination) in, outstanding shares of
its Common Stock) or (iii) any sale or conveyance of the properties and assets
of the Company as, or substantially as, an entirety to any other corporation;
then the Company, or such successor or purchasing corporation, as the case may
be, shall execute with the Trustee a supplemental indenture (which shall conform
to the Trust Indenture Act as in force at the date of execution of such
supplemental indenture and comply with the provisions of Article Nine) providing
that each Convertible Security shall be convertible into the kind and amount of
shares of stock and other securities or property, including cash, receivable
upon
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such reclassification, change, consolidation, merger, sale or conveyance by
a holder of a number of shares of Common Stock deliverable upon conversion of
such Convertible Securities immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The Company shall
cause notice of the execution of such supplemental indenture to be mailed to
each holder of Convertible Securities, at his address appearing on the Security
Register provided for in Section 305 of this Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, consolidations, mergers and sales.
SECTION 1908. Taxes on Shares Issued.
The delivery of stock certificates on conversions of
Convertible Securities shall be made without charge to the Holder converting a
Convertible Security for any tax in respect of the issue thereof. The Company
shall not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the delivery of stock registered in any name other
than of the Holder of any Convertible Security converted, and the Company shall
not be required to deliver any such stock certificate unless and until the
person or persons requesting the delivery thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 1909. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which
may be delivered upon conversion of Convertible Securities will upon delivery be
fully paid and nonassessable by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Convertible Securities hereunder
require registration with or approval of any governmental authority under any
Federal or state law before such shares may be validly delivered upon
conversion, the Company will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be.
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The Company further covenants that it will, if permitted by
the rules of the New York Stock Exchange, list and keep listed for so long as
the Common Stock shall be so listed on such exchange, upon official notice of
issuance, all Common Stock deliverable upon conversion of the Convertible
Securities.
SECTION 1910. Responsibility of Trustee.
Neither Trustee nor any authenticating agent nor any
conversion agent shall at any time be under any duty or responsibility to any
Holder of Convertible Securities to determine whether any facts exist which may
require any adjustment of the Conversion Price, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed,
or herein or in any supplemental indenture provided to be employed, in making
the same. Neither the Trustee nor any authenticating agent nor any conversion
agent shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Convertible Security,
and neither the Trustee nor any authenticating agent nor any conversion agent
makes any representation with respect thereto. Subject to the provisions of
Section 601, neither the Trustee nor any authenticating agent nor any conversion
agent shall be responsible for any failure of the Company to deliver any shares
of Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Convertible Security for the purpose of conversion or
for any failure of the Company to comply with any of the covenants of the
Company contained in this Article.
SECTION 1911. Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of its
current or retained earnings); or
(b) the Company shall authorize the granting to the holders of
the Common Stock of rights or warrants to subscribe for or purchase any
share of any class or any other rights or warrants; or
(c) of any reclassification or change of the Common Stock
(other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or
from no par value to
-131-
<PAGE> 144
par value) or of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Corporation is
required or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
the Company shall cause to be filed with the Trustee and the Company shall cause
to be mailed to each holder of Convertible Securities at his address appearing
on the Security Register, provided for in Section 305 of this Indenture, as
promptly as possible but in any event no less than fifteen days prior to the
applicable date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend, distribution, rights
or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up or any adjustment in the Conversion Price required by
this Article Nineteen.
SECTION 1912. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and
keep available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all outstanding Convertible Securities.
-132-
<PAGE> 145
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.
STAR BANC CORPORATION
By
---------------------------------
Its
---------------------------------
[CORPORATE SEAL]
Attest:
- ---------------------
Secretary
-----------------------------------
By
----------------------------------
Its
----------------------------------
[CORPORATE SEAL]
Attest:
- ----------------------
Secretary
-133-
<PAGE> 146
STATE OF OHIO )
)SS.
COUNTY OF ________ )
On the __________ day of __________, __________, before me
personally came ________________, to me known, who, being duly sworn, did depose
and say that he resides at ________________________ ; that he is a
___________________________ of Star Banc Corporation, a corporation described in
and which executed the above instrument; that he knows the seal of said
corporation; that it was so affixed pursuant to the authority of the Board of
Directors of said corporation; and that he signed his name thereto pursuant to
like authority.
_______________________________
Notary Public
STATE OF )
)SS.
COUNTY OF )
On the __________ day of __________, __________, before me
personally came _____________, to me known, who, being duly sworn, did depose
and say that he resides at ______________________ ; that he is a
________________________ of ________________, a national banking association
described in and which executed the above instrument; that he knows the seal of
said corporation; that it was so affixed pursuant to the authority of the Board
of Directors of said corporation; and that he signed his name thereto pursuant
to like authority.
______________________________
Notary Public
-134-
<PAGE> 147
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a Non-United
States Person or by Certain Other Persons]
Certificate
STAR BANC CORPORATION
[Insert title or sufficient description
of Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of
____________________, __________ (the "Indenture") between STAR BANC Corporation
and ________________________, as trustee (the "Trustee"), covering the
above-captioned Debt Securities. This is to certify that as of the date hereof,
__________ principal amount of Debt Securities credited to you for our account
(i) is owned by persons that are not United States Persons, as defined below;
(ii) is owned by United States Persons that are (a) foreign branches of United
States financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the Debt Securities
through foreign branches of United States financial institutions and who hold
the Debt Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution encloses herewith a certificate in the form of Exhibit A-2 to the
Indenture); or (iii) is owned by United States or foreign financial institutions
for purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163- 5(c)(2)(i)(D)(7)), which United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) certify that they have not acquired the Debt
Securities for purposes of resale directly or indirectly to a United States
Person or to a person within the United States or its possessions.
[Insert if certificate does not relate to an interest
payment--We undertake to advise you by tested telex followed by written
confirmation if the above statement as to beneficial ownership is not correct on
the date of delivery of the above-captioned Debt Securities in bearer form as to
all of such Debt Securities with respect to such of said Debt Securities as then
appear in your books as being held for our account.] We understand that this
certificate is required in connection with United States tax laws. We
irrevocably authorize you to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings with respect to the
matters covered by this certificate. "United States Person" shall mean a citizen
or resident of the United States of America (including the District of
Columbia), a corporation,
A-1
<PAGE> 148
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income.
[This certificate excepts and does not relate to __________
principal amount of Debt Securities credited to you for our account and to which
we are not now able to make the certification set forth above. We understand
that definitive Debt Securities cannot be delivered and interest cannot be paid
until we are able to so certify with respect to such principal amount of Debt
Securities.]*
Dated: __________________
[To be dated on or after
______________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive
Bearer Security]
___________________________________
(Authorized Signatory)
Name:______________________________
Title:_____________________________
______________________
* Delete if inappropriate
A-2
<PAGE> 149
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
STAR BANC CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of
______________________, ___________________ (the "Indenture"), between STAR BANC
Corporation and ___________________________, as trustee, relating to the
offering of the above-captioned Debt Securities (the "Debt Securities"). Unless
herein defined, terms used herein have the same meaning as given to them in the
Indenture.
The undersigned represents that it is a branch located outside
the United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulation Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection
with the United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
Dated:__________________
[To be dated on or after
__________________ (the
date determined as provided
in the Indenture)]
A-3
<PAGE> 150
[Name of Person Entitled to Receive
Bearer Security]
___________________________________
(Authorized Signatory)
Name:______________________________
Title:_____________________________
A-4
<PAGE> 151
EXHIBIT B
[Form of Certificate to be Given by Euroclear
and Cedel S.A. in Connection with the Exchange of
All or a Portion of a Temporary Global
Security or to Obtain Interest Prior to Exchange]
Certificate
STAR BANC CORPORATION
[Insert title or sufficient description
of Debt Securities to be delivered]
We refer to that portion, ___________, of the Global Security
representing the above-captioned issue [which is herewith submitted to be
exchanged for definitive Debt Securities]* [for which we are seeking to obtain
payment of interest]* (the "Submitted Portion"). This is to certify, pursuant to
the Indenture dated as of _____________________, _________ (the "Indenture")
between STAR BANC Corporation and _______________________________, as trustee
(the "Trustee"), that we have received in writing, by tested telex or by
electronic transmission from member organizations with respect to each of the
persons appearing in our records as being entitled to a beneficial interest in
the Submitted Portion a Certificate of Beneficial Ownership by a Non-United
States Person or by Certain Other Persons [and, in some cases, a Certificate of
Status as a Foreign Branch of a United States Financial Institution, authorizing
us to inform the issuer or the issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986 and the regulations thereunder]* substantially in the form of Exhibit A-1
[and A-2]* to the Indenture.
We hereby request that you deliver to the office of
________________ in ___________ definitive Bearer Securities
in the denominations on the attached Schedule A.
_________________
* Delete if inappropriate
B-1
<PAGE> 152
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates to
the effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
Dated:______________
By:___________________________________
B-2
<PAGE> 1
EXHIBIT 5.1
EFFECTIVE DATE OF THE REGISTRATION STATEMENT
Star Banc Corporation
Star Bank Center
425 Walnut Street
Cincinnati, Ohio 45202
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of Star Banc Corporation
(the "Corporation") and, as such, I have acted as counsel for the Corporation in
the preparation of a Registration Statement on Form S-3 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Securities Act") in connection with
the proposed offer and sale of the following securities (the "Securities") of
the Corporation having an aggregate initial public offering price of up to
$500,000,000: (i) senior debt securities (the "Senior Debt Securities"), (ii)
subordinated debt securities (the "Subordinated Debt Securities," and together
with the Senior Debt Securities, the "Debt Securities"), (iii) preferred stock
and preference stock, no par value (the "Preferred Stock"), of the Corporation,
interests in which may be evidenced by appropriately prepared depositary shares
(the "Depositary Shares"), (iv) common stock, par value $5.00 per share, (the
"Common Stock") of the Corporation issuable upon conversion of Debt Securities,
Preferred Stock, or Depositary Shares, or upon exercise of warrants, and (v)
appropriately prepared warrants to purchase Debt Securities, Preferred Stock, or
Common Stock (collectively, the "Warrants"). The Securities may be offered
separately or as part of units with other Securities, in separate series, in
amounts, at prices, and on terms to be set forth in the prospectus and one or
more supplements to the prospectus (collectively, the "Prospectus") constituting
a part of the Registration Statement, and in the Registration Statement.
The Senior Debt Securities are to be issued under an indenture in the form
filed as Exhibit 4.1 to the Registration Statement, with appropriate insertions,
(the "Senior Indenture") to be entered into by the Corporation and a trustee or
trustees to be named by the Corporation. The Subordinated Debt Securities are to
be issued under an indenture in the form filed as Exhibit 4.5 to the
Registration Statement, with appropriate insertions, (the "Subordinated
Indenture") to be entered into by the Corporation and a trustee or trustees to
be named by the Corporation. The Depositary Shares are to be issued under a
deposit agreement in the form filed as Exhibit 4.13 to the Registration
Statement, with appropriate insertions, (the "Deposit Agreement") to be entered
into by the Corporation, a depositary to be named by the Corporation, and the
holders from time to time of depositary receipts evidencing Depositary Shares.
The Common Stock and the Preferred Stock are to be issued under the Certificate
of Incorporation. The Warrants are to be issued under warrant agreements in the
forms filed as Exhibits 4.15 to 4.18 to the Registration Statement, with
appropriate insertions, (the "Warrant Agreements") to be entered into by the
Corporation and warrant agents to be named by the Corporation.
Certain terms of the Securities to be issued by the Corporation from time
to time will be approved by the Board of Directors of the Corporation or a
committee thereof or certain authorized officers of the Corporation as part of
the corporate action taken and to be taken (the "Corporate Proceedings") in
connection with issuance of the Securities. I have examined or am otherwise
familiar with the Certificate of Incorporation, the By-Laws of the Corporation,
as amended, the Registration Statement, such of the Corporation Proceedings as
have occurred as of the date hereof, and such other documents, records, and
instruments as I have deemed necessary or appropriate for the purpose of this
opinion.
Based on the foregoing, I am of the opinion that: (i) upon the execution
and delivery by the Corporation of the Senior Indenture or the Subordinated
Indenture, as the case may be, and the execution and delivery of the Deposit
Agreement, and the applicable Warrant Agreement, the completion of all required
Corporate Proceedings, and the execution, issuance, and delivery, and the
authentication by a duly appointed authenticating agent, of the Senior Debt
Securities and Subordinated Debt Securities, the Depositary Shares, and the
Warrants,
<PAGE> 2
respectively, pursuant to such agreements, such Senior Indenture, Subordinated
Indenture, Deposit Agreement, or Warrant Agreement, as the case may be, will
become valid and binding instruments, and any Debt Securities issuable
thereunder will be legal, valid, and binding obligations of the Corporation
except in each case as enforcement of provisions of such instruments and
agreements may be limited by bankruptcy or other laws of general application
affecting the enforcement of creditors' rights and by general equity principles,
and any Depositary Shares, Warrants, or Preferred Stock (assuming completion of
the actions referred to in clause (ii) below) or Common Stock (assuming
completion of the actions referred to in clause (iii) below) issuable thereunder
will be duly and validly authorized and issued, fully paid, and nonassessable;
(ii) upon the authorization of issuance of the Preferred Stock, completion of
all required Corporate Proceedings and the execution, issuance, and delivery of
the Preferred Stock pursuant to such Certificate of Designations, the Preferred
Stock will be duly and validly authorized and issued, fully paid, and
nonassessable; and (iii) upon the authorization and issuance of the Common
Stock, the completion of all required Corporate Proceedings, and the execution,
issuance, and delivery of the Common Stock, the Common Stock will be duly and
validly authorized and issued, fully paid, and nonassessable. The foregoing
opinion assumes that (i) the consideration designated in the applicable
Corporate Proceedings for any Preferred Stock or Common Stock shall have been
received by the Corporation in accordance with applicable law; (ii) the Senior
Indenture, the Subordinated Indenture, the Deposit Agreement, and any Warrant
Agreement shall have been duly authorized, executed, and delivered by all
parties thereto other than the Corporation; (iii) the Registration Statement
shall have become effective under the Securities Act, and (iv) the applicable
Senior Indenture or Subordinated Indenture shall have become duly qualified
under the Trust Indenture Act of 1939, as amended.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the Prospectus included therein
under the caption "Validity of Securities" with respect to the matters stated
herein.
Very truly yours,
/s/ THOMAS J. LAKIN
--------------------------------------
Thomas J. Lakin
<PAGE> 1
EXHIBIT 12.1
RATIOS OF EARNINGS TO FIXED CHARGES
AS OF SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
YTD.
9/30/96 1995 1994 1993 1992 1991
------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
COMPUTATION OF INCOME:
Income before income taxes............... 175,689 205,017 178,438 152,509 114,118 95,960
+ fixed charges.......................... 42,738 68,886 49,346 26,422 25,361 32,548
------- ------- ------- ------- ------- -------
"Earnings" excluding interest on
deposits............................ 218,427 273,903 227,784 178,931 139,479 128,508
Interest on deposits..................... 197,143 265,972 175,220 170,922 210,339 277,412
------- ------- ------- ------- ------- -------
"Earnings" including interest on
deposit............................. 415,570 539,875 403,004 349,853 349,818 405,920
------- ------- ------- ------- ------- -------
COMPUTATION OF FIXED CHARGES:*
Net rental expense....................... 5,459 7,370 8,228 7,960 7,987 7,880
Portion of rentals deemed
representative of interest.......... 1,820 2,457 2,743 2,653 2,662 2,627
Interest exp-STB....................... 31,928 55,227 39,081 17,752 16,883 25,282
Interest exp-LTD....................... 8,764 10,997 9,317 6,017 5,816 4,639
Premium/(discount) on debt............. 226 205 (1,795)
Preferred stock dividends**............ -- -- -- -- -- --
------- ------- ------- ------- ------- -------
FIXED CHARGES BEFORE INTEREST EXP ON
DEPOSITS............................ 42,738 68,886 49,346 26,422 25,361 32,548
Interest on deposits..................... 197,143 265,972 175,220 170,922 210,339 277,412
------- ------- ------- ------- ------- -------
FIXED CHARGES INCLUDING INTEREST
EXPENSE ON DEPOSITS................. 239,881 334,858 224,566 197,344 235,700 309,960
------- ------- ------- ------- ------- -------
RATIO OF EARNINGS TO FIXED CHARGES:
Excluding interest on deposits......... 511% 398% 462% 677% 550% 395%
Including interest on deposits......... 173% 161% 179% 177% 148% 131%
RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS:
Excluding interest on deposits......... 511% 397% 457% 637% 515% 384%
Including interest on deposits......... 173% 161% 179% 176% 147% 131%
</TABLE>
- ---------------
* Interest includes any capitalized interest in addition to any discount or
premium
** Only includes preferred stock dividend requirements of majority owned subs
and 50% owned persons (parent co. preferred stock dividends excluded)
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated January 10, 1996
incorporated by reference in Star Banc Corporation's Form 10-K for the year
ended December 31, 1995 and to all references to our Firm included in this
registration statement.
Cincinnati, Ohio
January 13, 1997
<PAGE> 1
EXHIBIT 24.1
STAR BANC CORPORATION
POWER OF ATTORNEY
OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of STAR BANC CORPORATION, an Ohio corporation, does hereby make,
constitute and appoint JERRY A. GRUNDHOFER, DAVID M. MOFFETT, JAMES D. HOGAN,
and THOMAS J. LAKIN, and each or any of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officers of said Corporation to a Registration Statement or
Registration Statements, on Form S-3 or other applicable form, and all
amendments, including post-effective amendments, thereto, and all registration
statements for the same offering that are to be effective upon filing pursuant
to Rule 462(b) under the Securities Act of 1933, as amended, to be filed by said
Corporation with the Securities and Exchange Commission, Washington, D.C., in
connection with the registration under the Securities Act of 1933, as amended,
of debt and equity securities, and other securities related thereto, in an
aggregate amount not to exceed $500,000,000, proposed to be sold by said
Corporation, and to file the same, with all exhibits thereto and other
supporting documents, with said Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney,
this 14th day of January, 1997.
<TABLE>
<S> <C>
/s/ JAMES R. BRIDGELAND, JR. /s/ THOMAS J. KLINEDINST, JR.
- -------------------------------------------- --------------------------------------------
James R. Bridgeland, Jr. Thomas J. Klinedinst, Jr.
/s/ LAURENCE L. BROWNING, JR. /s/ CHARLES S. MECHEM, JR.
- -------------------------------------------- --------------------------------------------
Laurence L. Browning, Jr. Charles S. Mechem, Jr.
/s/ VICTORIA B. BUYNISKI /s/ DANIEL J. MEYER
- -------------------------------------------- --------------------------------------------
Victoria B. Buyniski Daniel J. Meyer
/s/ SAMUEL M. CASSIDY /s/ DAVID B. O'MALEY
- -------------------------------------------- --------------------------------------------
Samuel M. Cassidy David B. O'Maley
/s/ V. ANDERSON COOMBE /s/ ODELL M. OWENS
- -------------------------------------------- --------------------------------------------
V. Anderson Coombe Odell M. Owens
/s/ JOHN C. DANNEMILLER /s/ THOMAS E. PETRY
- -------------------------------------------- --------------------------------------------
John C. Dannemiller Thomas E. Petry
/s/ J.P. HAYDEN, JR. /s/ WILLIAM C. PORTMAN
- -------------------------------------------- --------------------------------------------
J.P. Hayden, Jr. William C. Portman
/s/ ROGER I. HOWE /s/ OLIVER W. WADDELL
- -------------------------------------------- --------------------------------------------
Roger I. Howe Oliver W. Waddell
</TABLE>
<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)
MELLON BANK, N.A.
(Name of Trustee)
<TABLE>
<S> <C>
25-0659306 U.S.
(I.R.S. Employer Identification No.) (Jurisdiction of incorporation)
</TABLE>
One Mellon Bank Center
Pittsburgh, PA 15258-0001
(Address of Principal Executive Office)
ELAINE D. RENN
Vice President
MELLON BANK, N.A.
ONE MELLON BANK CENTER
PITTSBURGH, PENNSYLVANIA 15258-0001
(412) 234-4694
(Name, Address and Telephone Number of Agent for Service)
_______________________
STAR BANC CORPORATION
(Name of Obligor)
OHIO
(State or Other Jurisdiction of Incorporation or Organization)
31-0838189
(I.R.S. Employer Identification No.)
425 WALNUT STREET, P.O. BOX 1038, CINCINNATI, OHIO 45202
(Address of Principal Executive Offices)
DEBT SECURITIES
(Title of Indenture Securities)
<PAGE> 2
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.
<TABLE>
<S> <C>
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of Cleveland Cleveland, Ohio
Federal Deposit Insurance Corporation Washington, D.C.
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEMS 3-15 ARE NOT APPLICABLE SINCE THE OBLIGOR IS NOT IN DEFAULT ON SECURITIES
ISSUED UNDER INDENTURES UNDER WHICH THE APPLICANT IS TRUSTEE.
16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
<TABLE>
<S> <C> <C>
Exhibit 1 - Copy of articles of association of the trustee as now in
effect, filed as Exhibit 1 to trustee's statement of
eligibility and qualification, Registration No. 33-46990, and
incorporated herein by reference.
Exhibit 2 - Copy of certificate of the authority of the trustee to commence
business, copy of certificate of consolidation with the Union
Trust Company of Pittsburgh and copy of certificate approving
merger of Mellon National Bank and Trust Company into Mellon
Bank, N.A. filed as Exhibit T1A(b) to trustee's statement of
eligibility and qualification, Registration No. 33-13020, and
incorporated herein by reference.
Exhibit 3 - Copy of certificate as to authority of the trustee to exercise
corporate trust powers, filed as Exhibit T1A(c) to trustee's
statement of eligibility and qualification, Registration No.
33-13020, and incorporated herein by reference.
Exhibit 4 - Copy of existing by-laws of the trustee, filed as Exhibit 4 to
trustee's statement of eligibility and qualification,
Registration No. 33-46990, and incorporated herein by
reference.
Exhibit 5 - Copy of each indenture referred to in Item 4, if the obligor is
in default. Not Applicable.
Exhibit 6 - Consent of the trustee required by Section 321(b) of the Act,
filed as Exhibit T1D to trustee's statement of eligibility and
qualification, Registration No. 33-13020, and incorporated
herein by reference.
Exhibit 7 - Copy of the latest report of condition of the trustee
transmitted electronically pursuant to law or the requirements
of its supervising or examining authority.
</TABLE>
1
<PAGE> 3
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE
TRUSTEE, MELLON BANK, N.A., A NATIONAL BANKING ASSOCIATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY CAUSED THIS
STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF PITTSBURGH, AND COMMONWEALTH OF
PENNSYLVANIA, ON THE 21ST DAY OF JANUARY 1997.
MELLON BANK, N.A.
TRUSTEE
By: Elaine D. Renn
Elaine D. Renn
Vice President
2
<PAGE> 4
EXHIBIT 7
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF
MELLON BANK, N.A.
FOR SEPTEMBER 30, 1996
IN THE COMMONWEALTH OF PENNSYLVANIA, AT THE CLOSE OF BUSINESS ON SEPTEMBER
30, 1996; TRANSMITTED ELECTRONICALLY IN RESPONSE TO CALL MADE BY COMPTROLLER OF
THE CURRENCY, UNDER TITLE 12, UNITED STATES CODE, SECTION 161.
CHARTER NO. 6301 NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
(in thousands)
<TABLE>
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................................................. $ 3,038,315
Interest-bearing balances ...................................................................................... 1,123,326
Securities:
Held-to-maturity securities .................................................................................... 2,272,716
Available-for-sale securities .................................................................................. 4,028,040
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 IBFs:
Federal funds sold ............................................................................................. 419,918
Securities purchased under agreements to resell ................................................................ 0
Loans and lease financing receivables:
Loans and leases, net of unearned income ........................................................... $24,231,179
LESS: Allowance for loan and lease losses ......................................................... 316,799
Loans and leases, net of unearned income, allowance, and reserve ............................................... 23,914,380
Assets held in trading accounts ................................................................................... 192,405
Premises and fixed assets (including capitalized leases) .......................................................... 481,417
Other real estate owned ........................................................................................... 54,290
Customers' liability to this bank on acceptances outstanding ...................................................... 231,428
Intangible assets ................................................................................................. 1,432,788
Other assets ...................................................................................................... 1,436,509
TOTAL ASSETS ........................................................................................... 38,625,532
LIABILITIES
Deposits:
In domestic offices ............................................................................................ 25,404,306
Noninterest-bearing ............................................................................. 7,983,023
Interest-bearing ................................................................................ 17,421,283
In foreign offices, Edge and Agreement subsidiaries, and IBFs .................................................. 3,447,198
Noninterest-bearing .............................................................................. 14,824
Interest-bearing ................................................................................. 3,432,374
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased ........................................................................................ 1,818,035
Securities sold under agreements to repurchase ................................................................. 272,800
Demand notes issued to the U.S. Treasury .......................................................................... 750,000
Trading liabilities ............................................................................................... 179,006
Other borrowed money:
With remaining maturity of one year or less .................................................................... 1,276,952
With remaining maturity of more than one year .................................................................. 466,772
Mortgage indebtedness and obligations under capitalized leases .................................................... 2,337
Bank's liability on acceptances executed and outstanding .......................................................... 231,428
Subordinated notes and debentures ................................................................................. 947,609
Other liabilities ................................................................................................. 722,451
TOTAL LIABILITIES ..................................................................................... 35,518,894
EQUITY CAPITAL
Common stock ...................................................................................................... 167,285
Surplus (exclude all surplus related to preferred stock) .......................................................... 831,676
Undivided profits and capital reserves ............................................................................ 2,136,597
Net unrealized holding gains (losses) on available-for-sale securities ............................................ (22,114)
Cumulative foreign currency translation adjustments ............................................................... (6,806)
TOTAL EQUITY CAPITAL .................................................................................. 3,106,638
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL ................................... 38,625,532
</TABLE>
3
<PAGE> 5
I, Michael K. Hughey, Senior Vice President and Corporate Controller of
the above-named bank, do hereby declare that this Report of Condition is true
and correct to the best of my knowledge and belief.
Michael K. Hughey
November 5, 1996
We, the undersigned directors, attest to the correctness of this Statement
of Resources and Liabilities. We 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 and is true and correct.
FRANK V. CAHOUET
W. KEITH SMITH
CHARLES A. CORRY
4
