<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 24, 1997
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
MERCANTILE BANCORPORATION INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MISSOURI 6712 43-0951744
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NUMBER)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
ONE MERCANTILE CENTER
P.O. BOX 524
ST. LOUIS, MISSOURI 63166-0524
(314) 425-2525
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
JON W. BILSTROM, ESQ.
GENERAL COUNSEL AND SECRETARY
MERCANTILE BANCORPORATION INC.
P.O. BOX 524
ST. LOUIS, MISSOURI 63166-0524
(314) 425-2525
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
JOHN Q. ARNOLD ROBERT M. LAROSE, ESQ. ROBERT P. DAVIS, ESQ.
CHIEF FINANCIAL OFFICER THOMPSON COBURN CLEARY, GOTTLIEB, STEEN &
MERCANTILE BANCORPORATION SUITE 3400 HAMILTON
INC. ONE MERCANTILE CENTER 1 LIBERTY PLAZA
P.O. BOX 524 ST. LOUIS, MISSOURI 63101 NEW YORK, NEW YORK 10006
ST. LOUIS, MISSOURI (314) 552-6000 (212) 225-2000
63166-0524
(314) 425-2525
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: From time to time after the effective date of this Registration
Statement as determined in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT* OFFERING PRICE* FEE
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities........ $500,000,000 100% $500,000,000 $151,515.15
- ----------------------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
*Estimated solely for the purpose of computing the registration fee.
---------------
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 THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED APRIL 24, 1997
PROSPECTUS
DEBT SECURITIES
MERCANTILE BANCORPORATION INC.
Mercantile Bancorporation Inc. ("Mercantile") from time to time may offer its
unsecured debt securities (the "Debt Securities"), which may be either senior
(the "Senior Debt Securities") or subordinated (the "Subordinated Debt
Securities") in priority of payment, up to an amount resulting in proceeds to
Mercantile of approximately $500,000,000. The Debt Securities may be offered as
separate series in amounts, at maturities, at prices and on terms to be
determined at the time of sale as set forth in a supplement or supplements to
this Prospectus (a "Prospectus Supplement"). Mercantile may sell Debt
Securities to or through underwriters, and also may sell Debt Securities
directly to other purchasers or through agents. If Mercantile, directly or
through agents, solicits offers to purchase the Debt Securities, Mercantile
reserves the sole right to accept, and together with its agents, to reject in
whole or in part any proposed purchase of Debt Securities. See "Plan of
Distribution."
The terms of a particular series of Debt Securities, including the specific
designation, aggregate principal amount, denominations, maturity, rate (which
may be fixed or variable) and time of payment of interest, if any,
subordination terms, if any, any terms for redemption at the option of
Mercantile or the holder, any terms for sinking fund payments, the initial
public offering price, the names of, and the principal amounts, if any, to be
purchased by, underwriters and the compensation of such underwriters, and the
other terms in connection with the offering and sale of a particular series of
the Debt Securities in respect of which this Prospectus is being delivered,
will be set forth in a Prospectus Supplement.
THE DEBT SECURITIES OFFERED BY THIS PROSPECTUS ARE NOT SAVINGS OR DEPOSIT
ACCOUNTS, ARE NOT OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NON-
BANKING AFFILIATE OF MERCANTILE BANCORPORATION INC., ARE NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT
AGENCY AND INVOLVE INVESTMENT RISKS, INCLUDING POSSIBLE LOSS OF
PRINCIPAL.
------------
THE DEBT SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1997.
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY MERCANTILE, OR ANY UNDERWRITER,
AGENT OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF MERCANTILE
SINCE THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND ANY RELATED PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
AVAILABLE INFORMATION
Mercantile is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files with the Securities and Exchange Commission (the
"Commission") reports, proxy statements and other information. Such reports,
proxy statements and other information filed with the Commission by Mercantile
can be inspected and copied at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Commission's regional offices located at Suite 1300, Seven World Trade Center,
New York, New York 10048 and Suite 1400, Citicorp Center, 500 West Madison
Street, Chicago, Illinois 60661. The Commission maintains an Internet site on
the World Wide Web containing reports, proxy and information statements and
other information filed electronically by Mercantile with the Commission. The
address of the World Wide Web site maintained by the Commission is
http://www.sec.gov. Mercantile Common Stock is listed on the New York Stock
Exchange (the "NYSE"), and such reports, proxy statements and other
information concerning Mercantile are available for inspection and copying at
the offices of the NYSE, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a registration statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by Mercantile with the Commission under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the Debt
Securities offered hereby. This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission,
and reference is hereby made to the Registration Statement and to the exhibits
relating thereto for further information with respect to Mercantile and the
Debt Securities. Any statements contained herein concerning the provisions of
any document are not necessarily complete, and, in each instance, reference is
made to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission, which may be inspected
without charge at the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C 20549. Each such statement is qualified in its
entirety by such reference. Copies of the Registration Statement may be
obtained from the Commission at the same address upon payment of the
prescribed fees.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
THIS PROSPECTUS INCORPORATES BY REFERENCE DOCUMENTS RELATING TO MERCANTILE
WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. IN ADDITION, THIS
PROSPECTUS INCORPORATES BY REFERENCE DOCUMENTS RELATING TO MARK TWAIN
BANCSHARES, INC. ("MARK TWAIN"), A MISSOURI CORPORATION AND BANK HOLDING
COMPANY, AND ROOSEVELT FINANCIAL GROUP, INC. ("ROOSEVELT"), A DELAWARE
CORPORATION AND SAVINGS AND LOAN HOLDING COMPANY, BOTH OF WHICH RECENTLY
ENTERED INTO DEFINITIVE AGREEMENTS WITH MERCANTILE TO BE ACQUIRED BY
MERCANTILE. SUCH DOCUMENTS, EXCLUDING EXHIBITS UNLESS SPECIFICALLY
INCORPORATED THEREIN, ARE AVAILABLE
-2-
<PAGE>
WITHOUT CHARGE TO ANY PERSON TO WHOM THIS PROSPECTUS IS DELIVERED, UPON
WRITTEN OR ORAL REQUEST, TO JON W. BILSTROM, GENERAL COUNSEL AND SECRETARY,
MERCANTILE BANCORPORATION INC., P.O. BOX 524, ST. LOUIS, MISSOURI 63166-0524,
TELEPHONE (314) 425-2525.
The following documents filed with the Commission by Mercantile under the
Exchange Act are incorporated herein by reference: Annual Report on Form 10-K
for the year ended December 31, 1996; and Registration Statement on Form S-4
(File No. 333-25131), filed with the Commission on April 14, 1997. The
following documents filed with the Commission by Mark Twain and Roosevelt
under the Exchange Act are incorporated herein by reference: Mark Twain's
Annual Report on Form 10-K for the year ended December 31, 1996; and
Roosevelt's Annual Report on Form 10-K/A for the year ended December 31, 1996,
respectively.
All documents filed by Mercantile, Mark Twain and Roosevelt pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof
and prior to the termination of the offering made hereby shall be deemed to be
incorporated by reference herein and made a part hereof from the date any such
document is filed. The information relating to Mercantile, Mark Twain and
Roosevelt contained in this Prospectus does not purport to be complete and
should be read together with the information in the documents incorporated by
reference herein. Any statement contained herein or in a document incorporated
herein by reference shall be deemed to be modified or superseded for purposes
hereof to the extent that a subsequent statement contained herein or in any
other subsequently filed document incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part
hereof. Any statements contained in this Prospectus involving matters of
opinion, whether or not expressly so stated, are intended as such and not as
representations of fact.
As used herein, the terms "Prospectus" and "herein" mean this Prospectus,
including such documents incorporated or deemed to be incorporated herein by
reference, as the same may be amended, supplemented or otherwise modified from
time to time. Statements contained in this Prospectus as to the contents of
any contract or other document referred to herein do not purport to be
complete, and where reference is made to the particular provisions of such
contract or other document, such provisions are qualified in all respect by
reference to all of the provisions of such contract or other document.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in the sections entitled "Mercantile
Bancorporation Inc." and "Recent Developments" and certain statements
incorporated by reference from documents filed with the Commission by
Mercantile, Mark Twain and Roosevelt are or may constitute forward-looking
statements (as such term is defined in the Private Securities Litigation
Reform Act of 1995). Because such statements are subject to risks and
uncertainties, actual results may differ materially from those expressed or
implied by such forward-looking statements.
MERCANTILE BANCORPORATION INC.
Mercantile is a registered bank holding company headquartered in St. Louis,
Missouri and incorporated under the laws of the State of Missouri in 1970. At
March 31, 1997, Mercantile, directly or through its subsidiaries, owned all of
the capital stock of Mercantile Bank National Association, based in St. Louis,
Missouri ("Mercantile Bank") and 27 other commercial banks and one federally
chartered thrift, all of which operate from 467 banking offices and 427
Fingertip Banking automated teller machines located throughout Missouri,
Illinois, Iowa, Arkansas and eastern Kansas (collectively, the "Banking
Subsidiaries").
Mercantile's services concentrate in three major lines of business--
consumer, corporate and trust and investment advisory services. Mercantile
also operates non-banking subsidiaries that provide related financial
services, including investment management, brokerage services and asset-based
lending.
-3-
<PAGE>
Mercantile has two acquisition transactions currently pending; the proposed
acquisitions of Mark Twain and Roosevelt, each of which is headquartered in St.
Louis, Missouri. For further information regarding the pending acquisitions of
Mark Twain and Roosevelt, see "Recent Developments."
Mercantile is a legal entity separate and distinct from Mercantile Bank and
Mercantile's other Banking Subsidiaries and affiliates. Because Mercantile is a
holding company, its rights and the rights of its creditors and shareholders,
including the holders of the Debt Securities, to participate in the assets of
any subsidiary upon its liquidation or recapitalization will be subject to the
prior claims of such subsidiary's creditors except to the extent that
Mercantile may itself be a creditor having recognized claims against such
subsidiary, in which case it will share in such subsidiary's assets along with
other creditors. As a result, the Debt Securities will be effectively
subordinated to all existing and future liabilities, including trade payables,
of Mercantile's subsidiaries.
There are various legal and regulatory limitations on the extent to which
Mercantile's Banking Subsidiaries may extend credit, pay dividends or otherwise
supply funds to Mercantile. The approval of the Office of the Comptroller of
the Currency (the "OCC") is required if total dividends declared by a national
bank in any calendar year should exceed net profits for that year combined with
its retained net profits for the preceding two years. Moreover, banks may not
pay dividends in excess of their undivided profits. In determining whether and
to what extent to pay dividends, each Banking Subsidiary must also consider the
effect of dividend payments on applicable risk-based capital and leverage
requirements as well as policy statements of the federal regulatory agencies to
the effect that, generally, banking organizations should pay dividends out of
current operating earnings. Mercantile's state-chartered Banking Subsidiaries
are subject to similar restrictions under their respective state laws. While
the specific standards vary from state to state, the Banking Subsidiaries are
generally permitted to pay dividends only from net profits, and then, only
after first deducting losses and credit write-offs. All of the applicable state
statutes prohibit the payment of dividends if such a payment would impair
capital. In addition, numerous governmental requirements and regulations affect
the activities of Mercantile and its bank and non-bank subsidiaries. See the
discussion in Part 1, Item 1 of Mercantile's Form 10-K for the year ended
December 31, 1996 under the caption "Supervision and Regulation."
The principal executive offices of Mercantile are located at One Mercantile
Center, P.O. Box 524, St. Louis, Missouri 63166-0524 (telephone number (314)
425-2525).
RECENT DEVELOPMENTS
Mercantile reported, on a consolidated basis, net income of $191.9 million
for the year ended December 31, 1996, compared with $232.7 million for 1995. As
of December 31, 1996, Mercantile reported, on a consolidated basis, total
assets of $19.0 billion, total deposits of $14.8 billion and shareholders'
equity of $1.6 billion, compared with total assets of $17.9 billion, total
deposits of $13.7 billion and shareholders' equity of $1.6 billion, as of
December 31, 1995. As of March 31, 1997, Mercantile reported, on a consolidated
basis, total assets of $18.9 billion, total deposits of $14.9 billion and
shareholders' equity of $1.6 billion. For the three months ended March 31,
1997, Mercantile reported net income of $1.00 per share, compared to $0.70 per
share for the three months ended March 31, 1996, excluding one-time acquisition
charges.
During the fourth quarter of 1996, Mercantile announced the execution of
definitive agreements to acquire Mark Twain, a Missouri corporation and a bank
holding company, and Roosevelt, a Delaware corporation and a savings and loan
holding company. The definitive agreement with respect to the Mark Twain
transaction was executed on October 27, 1996 and the acquisition is expected to
close in the second quarter of 1997. The definitive agreement with respect to
the Roosevelt acquisition was dated December 23, 1996 and the transaction is
expected to close during the third quarter of 1997. Each transaction is subject
to prior approval of the shareholders of the companies to be acquired (and, in
the case of Mark Twain, approval of the shareholders of Mercantile) and
appropriate regulatory approvals.
-4-
<PAGE>
Mark Twain, which is headquartered in St. Louis, Missouri, owns four banks
and operates from 41 banking offices in the St. Louis, Kansas City and
Springfield, Missouri metropolitan areas, including locations in southeastern
Illinois within the St. Louis metropolitan area and eastern Kansas in the
Kansas City metropolitan area. As of March 31, 1997, Mark Twain reported, on a
consolidated basis, total assets of $3.2 billion, total deposits of $2.5
billion and stockholders' equity of $320.0 million. Upon consummation of the
transaction, Mercantile will issue approximately 17.2 million shares of its
common stock as consideration in the acquisition. The Mark Twain acquisition
will be accounted for as a pooling-of-interests.
Roosevelt, with its executive offices in St. Louis, Missouri, owns Roosevelt
Bank and two Missouri state-chartered banks, all of which operate from 81
locations in Missouri, Kansas and Illinois. As of March 31, 1997, Roosevelt
reported, on a consolidated basis, total assets of $7.5 billion, total
deposits of $5.3 billion and total stockholders' equity of $469.6 million.
Upon consummation of the transaction, Mercantile will issue up to 13 million
shares (which will include up to 7 million reissued treasury shares) of its
common stock at an exchange ratio of .4211 for each share of Roosevelt common
stock, or $22.00 per share in cash, as consideration in the acquisition. The
Roosevelt transaction will be accounted for as a purchase.
On February 4, 1997, Mercantile issued $150,000,000 of floating-rate debt
through Mercantile Capital Trust I, a Delaware statutory business trust (the
"Capital Trust"). For regulatory purposes, such debt is considered Tier I
capital. Proceeds of this transaction are expected to be utilized for share
repurchases relating to the Roosevelt transaction as well as for general
corporate purposes.
On March 5, 1997, Mercantile completed the acquisition of Regional
Bancshares, Inc., an Illinois corporation and a bank holding company
("Regional"). The acquisition was accounted for under the purchase method of
accounting. As of March 5, 1997, Regional reported, on a consolidated basis,
total assets of $181.4 million, total deposits of $146.8 million and
shareholders' equity of $25.0 million.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------
1996 1995 1994 1993 1992
----- ----- ----- ----- -----
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges(1)
Excluding Interest on Deposits.................. 3.40x 3.60x 4.41x 5.12x 4.07x
Including Interest on Deposits.................. 1.46x 1.56x 1.66x 1.57x 1.37x
</TABLE>
- --------
(1) For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of earnings before income taxes plus interest and one-
third of rental expense. Fixed charges, excluding interest on deposits,
consists of interest on indebtedness and one-third of rental expense
(which is deemed representative of the interest factor). Fixed charges,
including interest on deposits, consists of the foregoing items plus
interest on deposits.
USE OF PROCEEDS
Mercantile intends to use the net proceeds from the sale of the Debt
Securities to fund the proposed acquisition of Roosevelt, including the
repurchase of shares to be reissued in connection therewith, and the balance,
if any, for general corporate purposes, including, without limitation, the
reduction of indebtedness, investments in and advances to subsidiaries and
possible future acquisitions of bank and non-bank subsidiaries. Although
Mercantile from time to time evaluates potential acquisitions, it currently
has no understandings, commitments or agreements with respect to any
acquisitions, except with respect to Mark Twain and Roosevelt. See "Recent
Developments." Pending such application, the net proceeds will be invested in
short-term investment grade obligations.
-5-
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will consist of either Senior Debt Securities or
Subordinated Debt Securities. The Senior Debt Securities will be issued under
a senior indenture (the "Senior Indenture") and the Subordinated Debt
Securities will be issued under a subordinated indenture (the "Subordinated
Indenture"). The Senior Indenture and the Subordinated Indenture collectively
are referred to as the "Indentures" and the trustee under the Senior Indenture
(the "Senior Trustee") and the trustee under the Subordinated Indenture (the
"Subordinated Trustee") sometimes are referred to as the "Trustee". The
following description of Debt Securities relates to Debt Securities to be
issued in connection with either a United States Offering or an International
Offering, except, in the case of an International Offering, as otherwise
specified in the Prospectus Supplement relating thereto.
The trustee for a particular series of Debt Securities will be identified in
the Prospectus Supplement for such series, and all references to "Trustee"
shall be deemed to mean the trustee so identified. No Trustee shall be
responsible for the acts, obligations, liabilities or responsibilities of any
other trustee. The following summaries of certain provisions of the Indentures
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indentures, including the
definitions therein of certain terms. Wherever particular sections or defined
terms of the Indentures are referred to, it is intended that such sections or
definitions shall be incorporated herein by reference. The following sets
forth certain 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 (the "Offered Securities") 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 Offered Securities.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provide that Debt Securities may
be issued from time to time in one or more series. The Debt Securities will be
unsecured obligations of Mercantile. Neither the Indentures nor the Debt
Securities will limit or otherwise restrict the amount of other indebtedness
that may be incurred or other securities that may be issued by Mercantile or
any of its subsidiaries.
Reference is made to the Prospectus Supplement relating to the particular
series of Offered Securities for the following terms of such Offered
Securities: (1) the title; (2) any limit on the aggregate principal amount;
(3) whether such Offered Securities are Senior Debt Securities or Subordinated
Debt Securities; (4) the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which such Offered Securities will be
issued; (5) the date or dates on which such Offered Securities will mature;
(6) the rate or rates (which may be fixed or floating) per year at which such
Offered Securities will bear interest, if any, or the method of determining
the same; (7) the date from which such interest, if any, on such Offered
Securities will accrue, the dates on which such interest, if any, will be
payable, the date on which payment of such interest, if any, will commence and
the Regular Record Dates for such Interest Payment Dates, if any; (8) the
extent to which any of such Offered Securities will be issuable in the form of
one or more temporary or permanent Global Securities, and, if so, the identity
of the depository for such Global Securities, or the manner in which any
interest payable on temporary or permanent Global Securities will be paid; (9)
the dates, if any, on which, and the price or prices at which, such Offered
Securities will, pursuant to any mandatory sinking fund provisions, or may,
pursuant to any optional sinking fund or to any purchase fund provisions, be
redeemed by Mercantile, and the other detailed terms and provisions of such
sinking and/or purchase funds; (10) the date, if any, after which, and the
price or prices at which, such Offered Securities may, pursuant to any
optional redemption provisions, be redeemed at the option of Mercantile or of
the holder thereof and the other detailed terms and provisions of such
optional redemption; (11) the denomination or denominations in which such
Offered Securities are authorized to be issued; (12) whether such Offered
Securities will be issued as Registered Securities, Bearer Securities or both
and any limitations on the issuance of such Bearer Securities (including
exchange for Registered Securities of
-6-
<PAGE>
the same series); (13) information with respect to book-entry procedures; (14)
each office or agency where, subject to the terms of the applicable Indenture,
such Offered Securities may be presented for registration of transfer or
exchange; and (15) any other terms of such Offered Securities (which will not
be inconsistent with the provisions of the applicable Indenture).
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a substantial discount below their principal amount. Any special
considerations relating thereto will be described in the applicable Prospectus
Supplement.
The Debt Securities may be issuable as Registered Securities, Bearer
Securities or both. Unless otherwise indicated in the applicable Prospectus
Supplement, each series of Debt Securities will be issued as Registered
Securities. Debt Securities issued as Bearer Securities shall have interest
coupons attached, unless issued as zero coupon securities. Unless otherwise
indicated in the applicable Prospectus Supplement, Registered Securities will
be issued only in denominations of $1,000 or integral multiples thereof and
Bearer Securities will be issued only in denominations of $5,000 or integral
multiples thereof.
Bearer Securities shall not be offered, sold, resold or delivered in
connection with their original issuance in the United States or to any United
States person (as defined below) other than to offices located outside the
United States of certain United States financial institutions. "United States
person" means any citizen or resident of the United States, any corporation,
partnership or other entity created or organized in or under the laws of the
United States, any estate the income of which is subject to United States
federal income taxation regardless of its source, or a trust if (i) a United
States court is able to exercise primary supervision over the trust's
administration and (ii) one of more United States fiduciaries have the
authority to control all the trust's substantial decisions, and "United States"
means the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction. Purchasers of Bearer Securities will be subject to certification
procedures and may be affected by certain limitations under United States tax
laws. Such procedures and limitations will be described in the Prospectus
Supplement relating to the offering of the Bearer Securities.
The applicable Prospectus Supplement will include a description of the
requirements for certification of ownership by non-United States persons that
will apply prior to (1) the issuance of Bearer Securities or (2) the payment of
interest that occurs prior to the issuance of Bearer Securities.
Unless otherwise indicated in the applicable Prospectus Supplement,
Registered Securities of any series (other than a Global Security (as defined
in the Indentures), except as set forth below) will be exchangeable into an
equal aggregate principal amount of Registered Securities of the same series,
tenor and terms of different authorized denominations and Bearer Securities may
be exchanged for Registered Securities on the terms set forth in the applicable
Prospectus Supplement. In no event will Registered Securities be exchangeable
for Bearer Securities. Unless otherwise indicated in the applicable Prospectus
Supplement, Debt Securities may be presented for exchange, and Registered
Securities (other than a Global Security) may be presented for registration of
transfer, at the offices of the appropriate Trustee.
No service charge will be made for any registration of transfer or exchange
of the Debt Securities but Mercantile may require payment sufficient to cover
any tax or other governmental charge payable in connection therewith.
PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Securities will be
made at the office of the appropriate Trustee, except that, at the option of
Mercantile, interest may be paid by mailing a check to the address of the
person entitled thereto
-7-
<PAGE>
as it appears on the Security Register (as defined in the Indentures) (Section
3.02 of the Senior Indenture; Section 4.02 of the Subordinated Indenture).
Paying Agents (as defined in the Indentures) will be named in the Prospectus
Supplement and may be terminated at any time.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and any premium and interest on Bearer Securities will be
made, subject to applicable laws and regulations, at such paying agencies
outside the United States as Mercantile may designate from time to time. Any
such payment may be made, at the option of the holder, by check or by transfer
to an account maintained by the payee with a bank located outside the United
States. Unless otherwise indicated in the applicable Prospectus Supplement,
payment of interest on Bearer Securities will be made only against surrender
of the coupon relating to the relevant Interest Payment Date (as defined in
the Indentures). No payment with respect to any Bearer Security will be made
at any office or agency of Mercantile 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.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on
behalf of, a depository (the "Depository") identified in the Prospectus
Supplement relating to such series. Global Securities may be issued in either
registered or bearer form and in either temporary or permanent form. Unless
and until it is exchanged in whole or in part for the individual certificates
evidencing the Debt Securities represented thereby, a Global Security may not
be transferred except as a whole by the Depository for such Global Security to
a nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository or by such Depository or any
such nominee to a successor of such Depository or a nominee of such successor.
The specific terms of the depository arrangement with respect to a series of
Debt Securities will be described in the Prospectus Supplement relating to
such series. Mercantile anticipates that the following provisions will apply
to all depository arrangements although no assurance can be given that such
will be the case.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Debt Securities
represented by such Global Security to the accounts of institutions that have
accounts with such Depository ("participants"). The accounts to be credited
shall be designated by the underwriters or agents of such Debt Securities or
by Mercantile if such Debt Securities are offered and sold directly by
Mercantile. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that may hold interests through
participants. Ownership of such beneficial interests will be shown on, and the
transfer of that ownership will be effected only through, records maintained
by the Depository or its nominee for such Global Security (with respect to
interests of participants) and the records of participants (with respect to
interests of persons other than participants). The laws of some states require
that certain purchasers of securities take physical delivery of such
securities in definitive form. Such limits and such laws may impair the
ability to transfer beneficial interests in a Global Security.
So long as the Depository for a Global Security, or its nominee, is the
owner of such Global Security, such Depository or such nominee, as the case
may be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture
governing such Debt Securities. Except as set forth below, owners of
beneficial interests in a Global Security registered in their names will not
receive or be entitled to receive physical delivery of Debt Securities of such
series in definitive form and will not be considered the owners or holders
thereof under the Indenture governing such Debt Securities.
Payments of principal of and any premium and interest on Debt Securities
registered in the name of or held by a Depository or its nominee will be made
to the Depository or its nominee, as the case may be, as the registered owner
or the holder of the Global Security representing such Debt Securities. None
of Mercantile, the Trustee for such Debt Securities or any Paying Agent or the
Security Registrar for such Debt Securities will
-8-
<PAGE>
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Mercantile expects that the Depository for Debt Securities of a series, upon
receipt of any payment of principal, premium or interest in respect of a
permanent Global Security, immediately will credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depository or its nominee. Mercantile also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers in bearer form or registered in street name, and will be the
responsibility of such participants.
If the Depository for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as Depository and a successor Depository is
not appointed by Mercantile within 90 days, Mercantile will issue Debt
Securities of such series in definitive form in exchange for the Global
Security or Securities representing the Debt Securities of such series. In
addition, Mercantile at any time and in its sole discretion, subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities, may determine not to have any Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue
Debt Securities of such series in definitive form in exchange for the Global
Security or Securities representing such Debt Securities. Further, if
Mercantile so specifies with respect to the Debt Securities of a series, an
owner of a beneficial interest in a Global Security representing Debt
Securities of such series may receive, on terms acceptable to Mercantile and
the Depository for such Global Security, Debt Securities of such series in
definitive form in exchange for such beneficial interest, subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery in definitive form of Debt
Securities of the series represented by such Global Security equal in principal
amount to such beneficial interest and to have such Debt Securities registered
in its name (if the Debt Securities of such series are issuable as Registered
Securities). Debt Securities of such series so issued in definitive form will
be issued (a) as Registered Securities in denominations, unless otherwise
specified by Mercantile, of $1,000 or integral multiples thereof if the Debt
Securities of such series are issuable as Registered Securities, (b) as Bearer
Securities in denominations, unless otherwise specified by Mercantile, of
$5,000 or integral multiples thereof if the Debt Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Debt Securities of such series are issuable in either form.
CERTAIN COVENANTS OF MERCANTILE
Restrictions on Certain Dispositions of Voting Stock and Assets. Except as
described below under "Consolidation, Merger and Sale of Assets," the Senior
Indenture prohibits the sale or other disposition by Mercantile or any
Principal Constituent Bank (as defined below) of shares of, or securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock of a Principal Constituent Bank, the merger or
consolidation of any Principal Constituent Bank with any other corporation
(other than Mercantile or a Controlled Subsidiary), and the lease, sale or
other disposition of all or substantially all the assets of any Principal
Constituent Bank if, after giving effect to the transaction and to the issuance
of Voting Stock issuable to Persons other than Mercantile or any Controlled
Subsidiary (as defined below) upon the conversion or exercise of all such
convertible securities, options, warrants or rights, Mercantile would no longer
own (directly or indirectly) more than 80% of the shares of voting stock of
such Principal Constituent Bank or its successor. Neither Indenture, however,
prohibits any such sale or disposition of shares or securities, any such merger
or consolidation or any such lease, sale or disposition of assets (i) if
required by law or (ii) as a condition imposed by law to the acquisition by
Mercantile or any Controlled Subsidiary, directly or indirectly, of any other
corporation or entity if, thereafter, (a) Mercantile and/or its Controlled
Subsidiaries would own more than 80% of the Voting Stock of such other
corporation or entity (after giving effect to any potential dilution from
exercise or conversion of securities owned by parties other than Mercantile and
its Controlled Subsidiaries), (b) the
-9-
<PAGE>
Consolidated Net Banking Assets of Mercantile would not be decreased and (c)
Mercantile would still own more than 80% of the voting stock of such Principal
Constituent Bank (Section 3.06 of the Senior Indenture). "Principal
Constituent Bank" means Mercantile Bank and any other Subsidiary of Mercantile
that is a bank, including savings associations and other United States
depository institutions, the total assets of which equal more than 20% of the
total assets of all Subsidiaries of Mercantile that are banks (Section 1.01).
As of the date of this Prospectus, Mercantile's only Principal Constituent
Bank was Mercantile Bank. "Controlled Subsidiary" means any Subsidiary of
which more than 80% of the aggregate voting power of the outstanding shares of
the Voting Stock is at the time owned directly or indirectly by Mercantile or
by one or more Controlled Subsidiaries or by Mercantile and one or more
Controlled Subsidiaries, after giving effect to the issuance to any Person
other than Mercantile or any Controlled Subsidiary of Voting Stock of the
Subsidiary issuable on exercise of options, warrants or rights to subscribe
for such Voting Stock or on conversion of securities convertible into such
Voting Stock.
Restrictions on Liens. The Senior Indenture provides that Mercantile will
not create, assume, incur or suffer to exist any pledge, encumbrance or lien,
as security for indebtedness for borrowed money, upon any shares of, or
securities convertible into, or options, warrants or rights to subscribe for
or purchase shares of, Voting Stock of any Principal Constituent Bank owned by
Mercantile, directly or indirectly, if, treating the pledge, encumbrance or
lien as a transfer to the secured party, and after giving effect to any
potential dilution referred to above, Mercantile would no longer own (directly
or indirectly) more than 80% of the shares of Voting Stock of such Principal
Constituent Bank (Section 3.07 of the Senior Indenture). The Subordinated
Indenture does not contain a similar provision.
MODIFICATION OF THE INDENTURES; WAIVER OF COVENANTS
Each Indenture contains provisions permitting Mercantile and the Trustee to
modify the Indenture with the consent of the holders of not less than a
majority in aggregate principal amount of the outstanding Debt Securities of
each series affected thereby, except that, without the consent of the holder
of each Debt Security affected thereby, no such modification may, among other
things: (a) change the stated maturity date of the principal of, or any
installment of principal or interest on, any Outstanding Security; (b) reduce
the principal amount of, or any premium or interest on, any Outstanding
Security; (c) reduce the amount of principal of an Original Issue Discount
Security payable upon acceleration of the maturity thereof; (d) change the
place of payment of principal of, or any premium or interest on, any
Outstanding Security; (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Outstanding Security; (f)
reduce the percentage in principal amount of Outstanding Securities of any
series the consent of whose holders is required for modification or amendment
of the Indenture or for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults; or (g) in the case of the
Subordinated Indenture, make any change in the subordination provisions that
adversely affects the rights of any holder of Subordinated Debt Securities.
Prior to any acceleration of the Debt Securities of any series, the holders
of a majority in aggregate principal amount of the outstanding Debt Securities
of such series may waive any past default or Event of Default under the
applicable Indenture, except a default under a covenant that cannot be
modified without the consent of each holder of a Debt Security of the series
affected thereby (Section 4.07(b) of the Senior Indenture; Section 5.07(b) of
the Subordinated Indenture). In addition, the holders of a majority in
aggregate principal amount of the outstanding Debt Securities of any series
may rescind a declaration of acceleration of the Debt Securities of any series
before any judgment has been obtained if (i) Mercantile pays the Trustee
certain amounts due to the Trustee plus all matured installments of principal
of and any premium and interest on the Debt Securities of such series (other
than installments due by acceleration) and interest on the overdue
installments to the extent provided in the applicable Indenture and (ii) all
other defaults with respect to Debt Securities of that series under the
applicable Indenture have been cured or waived (Section 4.01 of the Senior
Indenture; Section 5.01 of the Subordinated Indenture).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture provides that Mercantile may not consolidate with or merge
into, or convey, transfer or lease its properties and assets substantially as
an entirety to, any Person unless: (a) the successor is organized under
-10-
<PAGE>
the laws of any domestic jurisdiction and assumes Mercantile's obligations on
the Debt Securities and under the applicable Indenture; (b) after giving
effect to the transaction, no Event of Default, and no event which, after
notice or lapse of time, would become an Event of Default, has occurred and is
continuing; and (c) certain other conditions are met (Section 9.01 of the
Senior Indenture; Section 10.01 of the Subordinated Indenture). In that event,
the successor will be substituted for Mercantile and except in the case of a
lease, Mercantile will be relieved of its obligations under the applicable
Indenture and the Debt Securities of each series (Section 9.02 of the Senior
Indenture; Section 10.02 of the Subordinated Indenture).
THE TRUSTEE
Mercantile will have no material relationship with the Trustee other than as
Trustee. Mercantile Bank may transact business with the Trustee in the
ordinary course.
The Indenture, under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), is deemed to contain certain limitations on the right of the
Trustee, as a creditor of Mercantile, to obtain payment of claims in certain
cases or to realize on certain property received in respect of any such claim,
as security or otherwise. The Trustee will be permitted to engage in
transactions with Mercantile. The occurrence of a default under either
Indenture with respect to Subordinated Debt Securities or Senior Debt
Securities could create a conflicting interest for the Trustee under the Trust
Indenture Act. If the default has not been cured or waived within 90 days
after the Trustee has or acquires a conflicting interest, the Trustee
generally is required by the Trust Indenture Act to eliminate such conflicting
interest or resign as Trustee with respect to the Subordinated Debt Securities
or the Senior Debt Securities. In the event of the Trustee's resignation,
Mercantile shall promptly appoint a successor trustee with respect to the
affected securities.
INTERNATIONAL OFFERING
If specified in the applicable Prospectus Supplement, Mercantile may issue
Offered Securities in an International Offering. Such Offered Securities may
be issued as Bearer Securities, Registered Securities or both and will be
described in the applicable Prospectus Supplement.
In connection with any such International Offering, Mercantile will
designate paying agents, registrars or other agents with respect to the
Offered Securities as specified in the applicable Prospectus Supplement.
Offered Securities issued in an International Offering may be subject to
certain selling restrictions which will be described in the applicable
Prospectus Supplement. Such Offered Securities may be listed on one or more
foreign stock exchanges as described in the applicable Prospectus Supplement.
Special United States tax and other considerations, if any, applicable to an
International Offering will be described in the applicable Prospectus
Supplement.
SENIOR DEBT SECURITIES
The Senior Debt Securities will be direct, unsecured obligations of
Mercantile and will rank equally and ratably with all outstanding unsecured
and unsubordinated indebtedness of Mercantile.
EVENTS OF DEFAULT
The Senior Indenture defines an Event of Default with respect to any
particular series of Senior Debt Securities as being any one of the following
events unless it is either inapplicable to a particular series or specifically
deleted or modified for the Senior Debt Securities of such series: (a) default
for 30 days in the payment of any interest upon any of the Senior Debt
Securities of that series; (b) default in the payment of the principal or any
premium on any of the Senior Debt Securities of that series when due; (c)
default in the payment of any sinking fund installment or analogous obligation
with respect to any of the Senior Debt Securities of that
-11-
<PAGE>
series when due; (d) a default or event of default under any instrument under
which there may be issued, or by which there may be secured or evidenced, any
indebtedness of Mercantile (other than the Senior Debt Securities of such
series or indebtedness to a Subsidiary) or any Subsidiary (other than
indebtedness of any Subsidiary owing to Mercantile or to another Subsidiary)
shall happen and not less than $20,000,000 of such indebtedness shall be past
due, or become due by acceleration, and such indebtedness or acceleration is
not discharged or rescinded within 30 days after notice by the Senior Trustee
or holders of at least 25% in aggregate principal amount of the outstanding
Senior Debt Securities of that series (calculated in accordance with the
formula set forth in such series in the case of a series of Senior Debt
Securities issued at an Original Issue Discount (as defined in the Senior
Indenture)); (e) final judgment(s) or order(s) for the payment of money in
excess of $20,000,000 is entered against Mercantile or a Principal Constituent
Bank and within 90 days of entry is not discharged or the execution thereof is
not stayed pending appeal, or within 90 days after the expiration of the stay
the judgment(s) or order(s) is not discharged; (f) default in the observance
or performance of any other covenant in the Senior Debt Securities of such
series or the Senior Indenture for 90 days after notice by the Senior Trustee
or holders of at least 25% in aggregate principal amount of the outstanding
Senior Debt Securities of the series (calculated in accordance with the
formula set forth in such series in the case of a series of Senior Debt
Securities issued at an Original Issue Discount); or (g) certain events of
bankruptcy, insolvency or reorganization of Mercantile or a Principal
Constituent Bank (Section 4.01).
In case an Event of Default with respect to the Senior Debt Securities of
any series shall occur and be continuing, the Senior Trustee or the holders of
not less than 25% in aggregate principal amount (in the case of a series of
Senior Debt Securities issued at an Original Issue Discount, calculated in
accordance with the formula set forth in such series) of all the outstanding
Senior Debt Securities of such series may declare the principal (or in the
case of a series of Senior Debt Securities issued at an Original Issue
Discount, the amount calculated in accordance with the formula set forth in
such series of Senior Debt Securities) of all the Securities of such series to
be due and payable (Section 4.01). The Senior Indenture provides that the
Senior Trustee, within 90 days after the occurrence of a default with respect
to Senior Debt Securities of any series under the Senior Indenture, shall mail
to the holders of the Senior Debt Securities of such series notice of all
uncured defaults known to it that have not been waived (the term defaults to
include events specified above which, after notice or lapse of time or both
would become an Event of Default); provided that, except in the case of
default in the payment of principal of or any premium or interest on any of
the Senior Debt Securities of that series or in the making of any sinking fund
payment with respect to the Senior Debt Securities of such series, the Senior
Trustee may withhold such notice if it in good faith determines that
withholding such notice is in the interest of the holders of the Securities of
that series (Section 4.08).
Subject to the provisions of the Senior Indenture relating to the duties of
the Senior Trustee in case an Event of Default shall occur and be continuing,
the Senior Trustee is under no obligation to exercise any of the rights or
powers under the Senior Indenture at the request, order or direction of any of
the holders of the Senior Debt Securities, unless such holders offer to the
Senior Trustee reasonable security or indemnity (Section 5.02(d)). Subject to
certain limitations contained in the Senior Indenture (including among other
limitations that the Senior Trustee will not be exposed to personal
liability), the holders of a majority in aggregate principal amount of the
outstanding Senior Debt Securities of all series affected (voting as one
class) have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Senior Trustee, or exercising any
trust or power conferred on the Senior Trustee (Section 4.07).
No holder of any Senior Debt Security of any series will have any right to
institute any proceeding with respect to the Senior Indenture or for any
remedy thereunder, unless such holder previously shall have given to the
Senior Trustee written notice of a continuing Event of Default with respect to
Senior Debt Securities of that series and unless also the holders of not less
than 25% in aggregate principal amount (in the case of a series of Senior Debt
Securities issued at an Original Issue Discount, calculated in accordance with
the formula set forth in such series) of the outstanding Senior Debt
Securities of that series shall have made written request, and offered
reasonable indemnity, to the Senior Trustee to institute such proceeding as
Senior Trustee, and the Senior Trustee shall not have received from the
holders of a majority in principal amount of the outstanding Senior
-12-
<PAGE>
Debt Securities of that series a direction inconsistent with such request and
shall have failed to institute such proceeding within 60 days (Section 4.04).
However, the holder of any Senior Debt Security will have an absolute right to
receive payment of the principal of and any premium and interest if any, on
such Senior Debt Security on or after the due dates expressed in such Senior
Debt Security and to institute suit for the enforcement of any such payment
(Section 4.04).
Mercantile is obligated to furnish annually to the Senior Trustee a statement
as to the performance by Mercantile of its obligations under the Senior
Indenture and as to any default in such obligations (Section 3.04).
DEFEASANCE
Mercantile may terminate certain of its obligations under the Senior
Indenture with respect to the Senior Debt Securities of any series on the terms
and subject to the conditions contained in the Senior Indenture, by (a)
depositing irrevocably with the Senior Trustee as trust funds in trust (i) U.S.
dollars or U.S. Government Obligations (as defined below) in an amount which
through the payment of interest, principal or premium, if any, in respect
thereof in accordance with their terms will provide (without any reinvestment
of such interest, principal or premium), not later than one business day before
the due date of any payment, money sufficient to pay the principal of and any
premium and interest on the Senior Debt Securities of such series as such are
due or (ii) a combination of money and U.S. Government Obligations sufficient
to pay the principal of and any premium and interest on the Senior Debt
Securities of such series as such are due and (b) satisfying certain other
conditions precedent specified in the Senior Indenture. Such deposit and
termination is conditioned among other things upon Mercantile's delivery of an
opinion of independent counsel that the holders of the Senior Debt Securities
of such series will have no federal income tax consequences as a result of such
deposit and termination. Such termination will not relieve Mercantile of its
obligation to pay when due the principal of and premium and interest on the
Senior Debt Securities of such series if the Senior Debt Securities of such
series are not paid from the money or U.S. Government Obligations held by the
Senior Trustee for payment thereof (Section 13.05).
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof.
SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be direct, unsecured obligations of
Mercantile and will rank equally and ratably with all outstanding subordinated
indebtedness of Mercantile and will rank superior in right of payment to
Mercantile's Floating Rate Junior Subordinated Deferrable Interest Debentures
due 2027.
SUBORDINATION
The obligation of Mercantile to make any payment of principal, premium or
interest on the Subordinated Debt Securities, to the extent set forth in the
Subordinated Indenture, will be subordinated in right of payment to the prior
payment in full of all existing and future Senior Indebtedness (as defined
below). Upon any distribution of assets of Mercantile in any dissolution,
winding up, liquidation or reorganization of Mercantile, the holders of Senior
Indebtedness are entitled to receive payment in full of principal and any
premium and interest before the holders of the Subordinated Debt Securities are
entitled to receive any payment on account of the principal of and any premium
or interest on the Subordinated Debt Securities, except holders of the
Subordinated Debt Securities, in a reorganization or readjustment of
Mercantile, may receive securities of Mercantile or any other corporation
subordinated to both Senior Indebtedness and any securities received in the
reorganization or readjustment by holders of Senior Indebtedness (except to the
extent that any securities so received are by their terms expressly not
superior in right of payment to the Subordinated Debt Securities) (Section
3.03). The
-13-
<PAGE>
dissolution, winding up, liquidation or reorganization of Mercantile following
a conveyance, transfer or lease of its properties and assets substantially as
an entirety in compliance with the terms described above under "Description of
Debt Securities--Consolidation, Merger and Sale of Assets" will not be deemed
to be a dissolution, winding up, liquidation or reorganization for this purpose
(Section 3.03(d)). In addition, Mercantile may not pay principal of and any
premium or interest on the Subordinated Debt Securities and may not acquire any
Subordinated Debt Securities for cash or property other than capital stock of
Mercantile if: (1) a default on Senior Indebtedness occurs and is continuing
that permits holders of such Senior Indebtedness to accelerate its maturity;
and (2) such default is the subject of judicial proceedings or Mercantile
receives written notice of such default from a representative of all holders of
such Senior Indebtedness. If Mercantile receives any such notice, a similar
notice received within 360 days thereafter relating to the same default on the
same issue of Senior Indebtedness shall not be effective for such purpose.
Mercantile may resume payments on the Subordinated Debt Securities and may
acquire them when: (i) such default is cured or waived or shall have ceased to
exist or the Senior Indebtedness to which such default relates shall have been
paid in full in cash or cash equivalent; or (ii) if such default is not the
subject of judicial proceedings, 120 days pass after such written notice is
received by Mercantile (Section 3.02(b)).
By reason of this subordination, holders of Senior Indebtedness may receive
more, ratably, and holders of the Subordinated Debt Securities may receive
less, ratably, than other creditors of Mercantile in the event of Mercantile's
insolvency. However, such subordination will not prevent the occurrence of any
Event of Default (Section 3.12).
The Subordinated Indenture does not restrict the incurrence of additional
Senior Indebtedness.
"Senior Indebtedness" means the principal of and any premium and interest on
the following, whenever incurred: (a) indebtedness of Mercantile for money
borrowed by Mercantile (including purchase money obligations with an original
maturity in excess of one year) or evidenced by debentures, notes or other
corporate debt securities or similar instruments issued by Mercantile (other
than the Subordinated Debt Securities); (b) indebtedness or obligations of
Mercantile as lessee under any leases of real or personal property required to
be capitalized under generally accepted accounting principles at the time; (c)
indebtedness or obligations incurred or assumed by Mercantile in connection
with the acquisition by Mercantile or any Subsidiary of any property, including
any business; (d) obligations under any agreement in respect of any interest
rate or currency swap, interest rate cap, floor or collar, interest rate
future, currency exchange or forward currency transaction that relates to
Senior Indebtedness; (e) indebtedness or obligations of Mercantile constituting
a guarantee of indebtedness or of obligations of others of the type referred to
in the preceding clauses; or (f) renewals, extensions or refundings of any of
the indebtedness or obligations referred to in the preceding clauses; except
Senior Indebtedness does not include any particular indebtedness or obligation,
renewal, extension or refunding if the express provisions of the instrument
creating or evidencing the same, or pursuant to which the same is outstanding,
provide that it is not superior in right of payment to the Subordinated Debt
Securities, and provided further that the Subordinated Debt Securities are
senior in right of payment to Mercantile's Floating Rate Junior Subordinated
Deferrable Interest Debentures due 2027 (Section 1.01).
LIMITED RIGHTS OF ACCELERATION
Unless otherwise specified in the Prospectus Supplement relating to any
series of Subordinated Debt Securities, payment of principal of the
Subordinated Debt Securities may be accelerated only in the case of an
"Acceleration Event" which is defined in the Indenture as any of the
bankruptcy, insolvency or reorganization events with respect to Mercantile or a
Principal Constituent Bank that constitute an Event of Default (as defined
below). There is no right of acceleration in the case of a default in the
payment of principal of or any premium or interest on the Subordinated Debt
Securities or the performance of any other covenant of Mercantile in the
Subordinated Indenture.
-14-
<PAGE>
EVENTS OF DEFAULT
The Subordinated Indenture defines an Event of Default with respect to any
particular series of Subordinated Debt Securities as being any one of the
following events unless it is either inapplicable to a particular series or
specifically deleted or modified for the Subordinated Debt Securities of such
series: (a) default for 30 days in the payment of any interest on any of the
Subordinated Debt Securities of that series; (b) default in the payment of the
principal or any premium on any of the Subordinated Debt Securities of that
series when due; (c) default in the payment of any sinking fund installment or
analogous obligation with respect to that series when due; (d) default in the
observance or performance of any other covenant or agreement in the
Subordinated Debt Securities of such series or the Subordinated Indenture for
90 days after notice by the Trustee or holders of at least 25% in aggregate
principal amount (in the case of a series of Subordinated Debt Securities
issued at an Original Issue Discount, calculated in accordance with the
formula set forth in such series, of the outstanding Subordinated Debt
Securities of the series); or (e) certain events of bankruptcy, insolvency or
reorganization of Mercantile or a Principal Constituent Bank (Section 5.01).
Rights of acceleration in case an Event of Default occurs are limited. See
"Limited Rights of Acceleration."
In case an Acceleration Event shall have occurred and be continuing, the
Subordinated Trustee or the holders of not less than 25% in aggregate
principal amount (in the case of a series of Subordinated Debt Securities
issued at an Original Issue Discount, calculated in accordance with the
formula set forth in such series) of the outstanding Subordinated Debt
Securities of such series may declare the principal (or, in the case of a
series of Subordinated Debt Securities issued at an Original Issue Discount,
the amount calculated in accordance with the formulas set forth in such series
of Subordinated Debt Securities) of all the Subordinated Debt Securities of
such series to be due and payable (Section 5.01). The Subordinated Indenture
provides that the Subordinated Trustee within 90 days after the occurrence of
a default with respect to Subordinated Debt Securities of any series under the
Subordinated Indenture, shall mail to the holders of the Subordinated Debt
Securities of such series notice of all uncured defaults known to it that have
not been waived (the term defaults to include events specified above which,
after notice or lapse of time or both, would become an Event of Default);
provided that, except in the case of default in the payment of principal of or
any premium or interest on any of the Subordinated Debt Securities of that
series or in the making of any sinking fund payment with respect to the
Subordinated Debt Securities of such series, the Subordinated Trustee may
withhold such notice if it in good faith determines that withholding such
notice is in the interest of the holders of the Subordinated Debt Securities
of that series (Section 5.08).
Subject to the provisions of the Subordinated Indenture relating to the
duties of the Subordinated Trustee in case an Event of Default shall occur and
be continuing, the Subordinated Trustee is under no obligation to exercise any
of the rights or powers under the Subordinated Indenture at the request, order
or direction of any of the holders of the Subordinated Debt Securities, unless
such holder offers to the Subordinated Trustee reasonable security or
indemnity (Section 6.02(d)). Subject to certain limitations contained in the
Subordinated Indenture (including among other limitations that the
Subordinated Trustee will not be exposed to personal liability), the holders
of a majority in aggregate principal amount of the outstanding Subordinated
Debt Securities of all series affected (voting as one class) have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Subordinated Trustee, or exercising any trust or power
conferred on the Subordinated Trustee (Section 5.07).
No holder of any Subordinated Security of any series will have any right to
institute any proceeding with respect to the Subordinated Indenture or for any
remedy thereunder unless such holder previously shall have given to the
Subordinated Trustee written notice of a continuing Event of Default with
respect to Subordinated Debt Securities of that series and unless also the
holders of not less than 25% in aggregate principal amount (in the case of a
series of Subordinated Debt Securities issued at an Original Issue Discount,
calculated in accordance with the formula set forth in such series) of the
outstanding Subordinated Debt Securities of that series shall have made
written request, and offered reasonable indemnity, to the Subordinated Trustee
to institute such proceeding as trustee, and the Subordinated Trustee shall
not have received from the holders of a majority in principal amount of the
outstanding Subordinated Debt Securities of that series a direction
inconsistent with such
-15-
<PAGE>
request and shall have failed to institute such proceeding within 60 days
(Section 5.04). However, the holder of any Subordinated Security will have an
absolute right to receive payment of the principal of and any premium and
interest on such Subordinated Security on or after the due dates expressed in
such Subordinated Security and to institute suit for the enforcement of any
such payment (Section 5.04).
Mercantile is obligated to furnish to the Subordinated Trustee annually a
statement as to the performance by Mercantile of its obligations under the
Subordinated Indenture and as to any default in such obligations (Section
4.04).
PLAN OF DISTRIBUTION
Mercantile may offer and sell the Debt Securities to or through
underwriters, acting as principals for their own accounts or as agents, to or
through dealers and also may offer and sell Debt Securities directly to other
purchasers. Any underwriters in connection with Offered Securities will be
named in the related Prospectus Supplement and any underwriting discounts and
other items constituting underwriters' compensation paid to such underwriters
will be set forth therein. Such underwriters may include acting alone or
a group of underwriters represented by . The Prospectus Supplement will
additionally set forth the name or names of any dealers or agents, the
purchase price of the Debt Securities and the proceeds to Mercantile from such
sale, any delayed delivery arrangements, the initial public offering price,
any discounts or concessions allowed or re-allowed or paid to dealers and any
securities exchange on which the Debt Securities may be listed.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or
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 that participate in the distribution of the
Offered Securities may be deemed to be underwriters and any discounts,
commissions or concessions received by them, as well as any profit realized on
resale of the Offered Securities may be deemed to be underwriting discounts or
commissions under the Securities Act.
If underwriters are used in any sale, the Offered Securities will be
acquired by the underwriters for their own accounts and may be resold from
time to time in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time
of sale. The Debt Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more underwriters. Unless otherwise set forth in the
applicable Prospectus Supplement, the obligations of the underwriters to
purchase the Offered Securities will be subject to certain conditions
precedent, the underwriters will be obligated to purchase all of such Offered
Securities if any are purchased, and Mercantile will have agreed to indemnify
the underwriters against certain civil liabilities, including liabilities
under the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make in respect thereof.
The initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to time.
If a dealer is utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, Mercantile will sell such Debt Securities
to the dealer as principal. The dealer may then resell such Debt Securities to
the public at varying prices to be determined by such dealer at the time of
resale. The name of the dealer and the terms of the transaction will be set
forth in the Prospectus Supplement relating thereto.
Debt Securities may be sold directly by Mercantile or through agents
designated by Mercantile from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any agent
involved in the offer or sale of the Debt Securities with respect to which
this Prospectus is delivered will be named, and any commissions payable by
Mercantile to such agent will be set forth, in the Prospectus Supplement
relating thereto. Unless otherwise indicated in the Prospectus Supplement, any
such agent will be acting on a best efforts basis for the period of its
appointment.
-16-
<PAGE>
If so indicated in the Prospectus Supplement, Mercantile will authorize
underwriters, dealers or other persons acting as Mercantile's agents to
solicit offers by certain institutions to purchase Debt Securities from
Mercantile pursuant to contracts providing for payment and delivery on a
future date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all
cases such institutions must be approved by Mercantile. The obligations of any
purchaser under any such contract will not be subject to any conditions except
that (i) the purchase of the Offered Securities shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject and (ii) if the Offered Securities also are being sold to
underwriters, Mercantile shall have sold to such underwriters the Offered
Securities not sold for delayed delivery. The dealers and such other persons
will not have any responsibility in respect of the validity or performance of
such contracts. The Prospectus Supplement will set forth the commission
payable for solicitation of such contracts.
CERTAIN UNITED STATES FEDERAL TAX CONSEQUENCES
The following is a summary of certain United States federal income and
estate tax considerations relating to the purchase, ownership and disposition
of Debt Securities, but does not purport to be a complete analysis of all the
potential tax considerations relating thereto. This summary is based on laws,
regulations, rulings and decisions now in effect, all of which are subject to
change. This summary deals only with holders that will hold Debt Securities as
capital assets and does not address tax considerations applicable to investors
that may be subject to special tax rules, such as banks, tax exempt
organizations, insurance companies, dealers in securities or currencies,
persons that will hold the Debt Securities as part of an integrated investment
(including a "straddle") comprised of Debt Securities and one or more other
positions, persons having a "functional currency," other than the United
States Dollar or holders of Debt Securities that did not acquire the Debt
Securities in the initial distribution thereof at their original issue price.
INVESTORS CONSIDERING THE PURCHASE OF DEBT SECURITIES SHOULD CONSULT THEIR
OWN TAX ADVISORS REGARDING THE APPLICATION OF THE UNITED STATES FEDERAL INCOME
TAX AND ESTATE TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX
CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN TAXING
JURISDICTION, OR UNDER ANY APPLICABLE TAX TREATY.
UNITED STATES HOLDERS
As used herein, the term "United States Holder" means the beneficial owner
of a Debt Security who or that is (i) a city or resident of the United States,
(ii) a domestic corporation or (iii) otherwise subject to United States
federal income taxation on a net income basis in respect of the Debt
Securities.
PAYMENTS OF INTEREST
Payments of "qualified stated interest" (as defined below under "Original
Issue Discount") on a Debt Security will be taxable to a United States Holder
as ordinary income at the time that such interest is received or accrued, in
accordance with such holder's method of accounting for United States federal
income tax purposes.
SALE, EXCHANGE OR REDEMPTION OF THE DEBT SECURITIES
Except as discussed below with respect to Short-Term Debt Securities, upon
the sale, exchange or redemption of a Debt Security, a United States Holder
generally will recognize capital gain or loss equal to the difference between
(i) the amount of cash proceeds and the fair market value of any property
received on the sale, exchange or redemption (except to the extent such amount
is attributable to accrued qualified stated interest) and (ii) such holder's
adjusted basis in the Debt Security. A United States Holder's tax basis in a
Debt Security will equal the cost of such Debt Security to such holder,
increased by any amounts includible in income by the holder as original issue
discount and reduced by any payments other than payments of qualified stated
interest made on such Debt Security.
-17-
<PAGE>
ORIGINAL ISSUE DISCOUNT
United States Holders of Original Issue Discount Securities generally will
be subject to the special tax accounting rules for obligations issued with
original issue discount ("OID") provided by the Internal Revenue Code of 1986,
as amended (the "Code"), and certain regulations promulgated thereunder (the
"OID Regulations"). United States Holders of such Debt Securities should be
aware that, as described in greater detail below, they generally must include
OID in ordinary gross income for United States federal income tax purposes as
it accrues, in advance of the receipt of cash attributable to that income.
In general, each United States Holder of an Original Issue Discount
Security, whether such holder uses the cash or the accrual method of tax
accounting, will be required to include in ordinary income the sum of the
"daily portions" of OID on the Debt Security for all days during the taxable
year that the United States Holder owns the Debt Security. The daily portions
of OID on an Original Issue Discount Security are determined by allocating to
each day in any accrual period a ratable portion of the OID allocable to that
accrual period. Accrual periods may be any length and may vary in length over
the term of an Original Issue Discount Security, provided that no accrual
period is longer than one year and each scheduled payment of principal or
interest occurs on either the final day or the first day of an accrual period.
The amount of OID on an Original Issue Discount Security allocable to each
accrual period is determined by (a) multiplying the "adjusted issue price" (as
defined below) of the Original Issue Discount Security at the beginning of the
accrual period by the yield to maturity of such Original Issue Discount
Security (appropriately adjusted to reflect the length of the accrual period)
and (b) subtracting from that product the amount (if any) of qualified stated
interest (as defined below) allocable to that accrual period. The yield to
maturity of a Debt Security is the discount rate that causes the present value
of all payments on the Debt Security as of its original issue date to equal
the issue price of such Debt Security. The "adjusted issue price" of an
Original Issue Discount Security at the beginning of any accrual period will
generally be the sum of its issue price (generally including accrued interest,
if any) and the amount of OID allocable to all prior accrual periods, reduced
by the amount of all payments other than payments of qualified stated interest
(if any) made with respect to such Debt Security in all prior accrual periods.
The term "qualified stated interest" generally means stated interest that is
unconditionally payable in cash or property (other than debt instruments of
the issuer) at least annually during the entire term of an Original Issue
Discount Security at a single fixed rate of interest or, subject to certain
conditions, based on one or more interest indices. In the case of an Original
Issue Discount Security that bears a floating rate of interest (a "Floating
Rate Security"), both the "yield to maturity" and "qualified stated interest"
will generally be determined for these purposes as though the Original Issue
Discount Security will bear interest in all periods at a fixed rate generally
equal to the rate that would be applicable to the interest payments on the
Debt Security on its date of issue or, in the case of certain Floating Rate
Securities, the rate that reflects the yield that is reasonably expected for
the Debt Security. (Additional rules may apply if interest on a Floating Rate
Security is based on more than one interest index.) As a result of this
"constant-yield" method of including OID in income, the amounts includible in
income by a United States Holder in respect of an Original Issue Discount
Security are lesser in the early years and greater in the later years than the
amounts that would be includible on a straight-line basis.
A United States Holder generally may make an irrevocable election to include
in its income its entire return on a Debt Security (i.e., the excess of all
remaining payments to be received on the Debt Security, including payments of
qualified stated interest, over the amount paid by such United States Holder
for such Debt Security) under the constant-yield method described above.
SHORT-TERM DEBT SECURITIES
The rules set forth above will also generally apply to Debt Securities
having maturities of not more than one year ("Short-Term Debt Securities"),
but with certain modifications.
-18-
<PAGE>
First, the OID Regulations treat none of the interest on a Short-Term Debt
Security as qualified stated interest (but instead treat such interest
payments as part of the Short-Term Debt Security's stated redemption price at
maturity, thereby giving rise to OID). Thus, all Short-Term Debt Securities
will be Original Issue Discount Securities. OID will be treated as accruing on
a Short-Term Debt Security ratably, or at the election of a United States
Holder, under a constant-yield method.
Second, a United States Holder of a Short-Term Debt Security that uses the
cash method of tax accounting and is not a bank, securities dealer, regulated
investment company or common trust fund, and does not identify the Short-Term
Debt Security as part of a hedging transaction, will generally not be required
to include OID in income on a current basis. Such a United States Holder may
not be allowed to deduct all of the interest paid or accrued on any
indebtedness incurred or maintained to purchase or carry such Debt Security
until the maturity of the Debt Security or its earlier disposition in a
taxable transaction. In addition, such a United States Holder will be required
to treat any gain realized on a sale, exchange or retirement of the Debt
Security as ordinary income to the extent such gain does not exceed the OID
accrued with respect to the Debt Security during the period the United States
Holder held the Debt Security. Notwithstanding the foregoing, a cash-basis
United States Holder of a Short-Term Debt Security may elect to accrue
original issue discount into income on a current basis (in which case the
limitation on the deductibility of interest described above will not apply). A
United States Holder using the accrual method of tax accounting and certain
cash-basis United States Holders (including banks, securities dealers,
regulated investment companies and common trust funds) generally will be
required to include original issue discount on a Short-Term Debt Security in
income on a current basis.
Certain of the Debt Securities may be subject to special redemption
features. These features may affect the determination of whether a Debt
Security has a maturity of not more than one year and thus is a Short-Term
Debt Security. Purchasers of Debt Securities with such features should
carefully examine the applicable Prospectus Supplement and should consult
their own tax advisors with respect to such features.
INFORMATION REPORTING AND BACKUP WITHHOLDING
The Trustee or any Paying Agent, as the case may be, will be required to
file information returns with the Internal Revenue Service with respect to
payments made to certain United States Holders of Debt Securities. In
addition, certain United States Holders may be subject to a 31 percent backup
withholding tax in respect of such payments if they do not provide their
taxpayer identification numbers to such Trustee or Paying Agent. Persons
holding Debt Securities who are not United States Holders may be required to
comply with application certification procedures to establish that they are
not United States Holders in order to avoid the application of such
information reporting requirements and backup withholding tax.
NON-UNITED STATES HOLDERS
Subject to the discussion of backup withholding below, payments of interest
on the Debt Securities to, or on behalf of, any beneficial owner of a Debt
Security that is not a United States Holder (a "Non-U.S. Holder") will not be
subject to United States federal income or withholding taxes, provided that
(i) such Non-U.S. Holder does not actually or constructively own 10 percent of
more of the total combined voting power of all classes of stock of Mercantile,
(ii) such Non-U.S. Holder is not a controlled foreign corporation for United
States tax purposes that is related to Mercantile actually or constructively
through stock ownership and (iii) the Non-U.S. Holder certifies, under
penalties of perjury, that it is not a United States person and provides its
name and address in compliance with applicable requirements.
Any capital gain realized on the sale, exchange, redemption or other
disposition of Debt Securities by a Non-U.S. Holder will not be subject to
United States federal income or withholding taxes unless, in the case of an
individual, such holder is present in the United States for 183 days or more
in the taxable year of the sale, exchange, redemption, or other disposition or
receipt and certain other conditions are met.
Payments made on a Debt Security and proceeds from the sale of a Debt
Security received by a Non-U.S. Holder will not be subject to a backup
withholding tax of 31 percent or to information reporting requirements
-19-
<PAGE>
unless, in general, the holder fails to comply with certain reporting
procedures or otherwise fails to establish an exemption from such tax or
reporting requirements under applicable provisions of the Code.
On April 15, 1996, the Internal Revenue Service released proposed revisions
(the "Proposed Regulations") to the regulations interpreting the withholding
tax, information reporting and backup withholding tax rules described above.
In general the Proposed Regulations would require certain Non-U.S. Holders to
provide additional information in order to establish an exemption from or
reduce the rate of withholding tax or backup withholding tax, and in
particular would require that foreign partnerships and partners of a foreign
partnership provide certain information and comply with certain certification
requirements not required under existing law. The Proposed Regulations are
proposed generally to be effective for payments made after December 31, 1997.
It is not possible to predict whether, or in what form, the Proposed
Regulations ultimately will be adopted.
Debt Securities will not be subject to United States federal estate tax as a
result of the death of a holder who is not a citizen or resident of the United
States at the time of death, unless such holder at the time of death actually
or constructively owns 10 percent or more of the combined voting power of all
classes of stock of Mercantile or, at the time of such holder's death,
payments of interest on such Debt Securities are effectively connected with
the conduct by such holder of a trade or business in the United States.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Debt Securities
offered hereby will be passed upon for Mercantile by Thompson Coburn, St.
Louis, Missouri. If the Debt Securities are distributed in an underwritten
offering, certain legal matters will be passed upon for the underwriters by
Cleary, Gottlieb, Steen & Hamilton, New York, New York.
EXPERTS
The consolidated financial statements of Mercantile as of December 31, 1996,
1995 and 1994, and for each of the years in the three-year period ended
December 31, 1996, incorporated by reference in Mercantile's Annual Report on
Form 10-K for the year ended December 31, 1996, have been incorporated by
reference herein in reliance upon the reports of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Mark Twain incorporated by
reference in Mark Twain's Annual Report on Form 10-K for the year ended
December 31, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon incorporated by reference
therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Roosevelt as of December 31, 1996
and 1995 and for each of the years in the three-year period ended December 31,
1996, included in Roosevelt's Annual Report on Form 10-K/A for the year ended
December 31, 1996, have been incorporated by reference herein in reliance upon
the report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
-20-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF INSURANCE AND DISTRIBUTION
The following table sets forth the estimated expenses in connection with the
offering described in this Registration Statement:
<TABLE>
<S> <C>
SEC Registration Fee............................................. $151,515
Blue Sky Fees and Expenses....................................... *
Legal Fees and Expenses.......................................... *
Accountants' Services............................................ *
Trustee's Fees and Expenses...................................... *
Printing Expenses................................................ *
Miscellaneous.................................................... *
--------
Total....................................................... $ *
========
</TABLE>
- --------
*To be completed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 351.355(1) and (2) of The General and Business Corporation Law of
the State of Missouri provide that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful, except that, in the case of an action or
suit by or in the right of the corporation, the corporation may not indemnify
such persons against judgments and fines and no person shall be indemnified as
to any claim, issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his duty to
the corporation, unless and only to the extent that the court in which the
action or suit was brought determines upon application that such person is
fairly and reasonably entitled to indemnity for proper expenses. Section
351.355(3) provides that, to the extent that a director, officer, employee or
agent of the corporation has been successful in the defense of any such
action, suit or proceeding or any claim, issue or matter therein, he shall be
indemnified against expenses, including attorneys' fees, actually and
reasonably incurred in connection with such action, suit or proceeding.
Section 351.355(7) provides that a corporation may provide additional
indemnification to any person indemnifiable under subsection (1) or (2),
provided such additional indemnification is authorized by the corporation's
articles of incorporation or an amendment thereto or by a shareholder-approved
bylaw or agreement, and provided further that no person shall thereby be
indemnified against conduct which was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct or which involved an
accounting for profits pursuant to Section 16(b) of the Securities Exchange
Act of 1934.
Article 12 of the Restated Articles of Incorporation of the Registrant
provides that the Registrant shall extend to its directors and executive
officers the indemnification specified in subsections (1) and (2) and the
additional indemnification authorized in subsection (7) and that it may extend
to other officers, employees and agents such indemnification and additional
indemnification.
Pursuant to directors' and officers' liability insurance policies, with
total annual limits of $30,000,000, the Registrant's directors and officers
are insured, subject to the limits, retention, exceptions and other terms and
conditions of such policy, against liability for any actual or alleged error,
misstatement, misleading statement, act or omission, or neglect or breach of
duty by the directors or officers of the Registrant, individually or
collectively, or any matter claimed against them solely by reason of their
being directors or officers of the Registrant.
II-1
<PAGE>
ITEM 16. EXHIBITS
See Exhibit Index.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in 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; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That for purposes of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-2
<PAGE>
The undersigned Registrant 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 purposes 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.
The undersigned Registrant hereby undertakes to file an application for the
purposes of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act ("Act") in accordance with the
rules and regulations presented by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE>
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 a Registration Statement 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 St. Louis, State of
Missouri, on April 23, 1997.
MERCANTILE BANCORPORATION INC.
/s/ Thomas H. Jacobsen
By __________________________________
Thomas H. Jacobsen, Chairman of
the Board, President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Mercantile Bancorporation
Inc., hereby severally and individually constitute and appoint Thomas H.
Jacobsen and John Q. Arnold, and each of them, the true and lawful attorneys
and agents of each of us to execute in the name, place and stead of each of us
(individually and in any capacity stated below) any and all amendments to this
Registration Statement on Form S-3 with respect to a shelf registration by
Mercantile Bancorporation, Inc., and all instruments necessary or advisable in
connection therewith and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have the power to act with or
without the others and to have full power and authority to do and perform in
the name and on behalf of each of the undersigned every act whatsoever
necessary or advisable to be done in the premises as fully and to all intents
and purposes as any of the undersigned might or could do in person, and we
hereby ratify and confirm our signatures as they may be signed by our said
attorneys and agents or each of them to any and all such amendments and
instruments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Thomas H. Jacobsen Chairman of the Board, April 23, 1997
____________________________________ President, Chief Executive
Thomas H. Jacobsen Officer and Director
Principal Executive Officer
/s/ John Q. Arnold Senior Executive Vice April 23, 1997
____________________________________ President and Chief
John Q. Arnold Financial Officer
Principal Financial Officer
/s/ Michael T. Normile Senior Vice President-- April 23, 1997
____________________________________ Finance and Control
Michael T. Normile
Principal Accounting Officer
/s/ Harry M. Cornell, Jr. Director April 23, 1997
____________________________________
Harry M. Cornell, Jr.
/s/ William A. Hall Director April 23, 1997
____________________________________
William A. Hall
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Thomas A. Hays Director April 23, 1997
____________________________________
Thomas A. Hays
/s/ Frank Lyon, Jr. Director April 23, 1997
____________________________________
Frank Lyon, Jr.
/s/ Edward A. Mueller Director April 23, 1997
____________________________________
Edward A. Mueller
/s/ Robert W. Murray Director April 23, 1997
____________________________________
Robert W. Murray
/s/ Harvey Saligman Director April 23, 1997
____________________________________
Harvey Saligman
/s/ Craig D. Schnuck Director April 23, 1997
____________________________________
Craig D. Schnuck
/s/ Robert L. Stark Director April 23, 1997
____________________________________
Robert L. Stark
/s/ Patrick T. Stokes Director April 23, 1997
____________________________________
Patrick T. Stokes
/s/ John A. Wright Director April 23, 1997
____________________________________
John A. Wright
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
------- ----------- ----
<C> <S> <C>
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture Regarding Senior Debt Securities.
4.2 Form of Indenture Regarding Subordinated Debt Securities.
5.1 Opinion of Thompson Coburn regarding the legality of the
securities to be registered.
12.1 Statement Regarding Computation of Earnings to Fixed Charges.
23.1 Consent of Thompson Coburn (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP with regard to the use of its
reports on Mercantile's financial statements.
23.3 Consent of Ernst & Young LLP with regard to the use of its
report on Mark Twain's financial statements.
23.4 Consent of KPMG Peat Marwick LLP with regard to the use of its
report on Roosevelt's financial statements.
24.1 Power of Attorney (included on signature page).
25.1 Form T-1 Statement of Eligibility.*
</TABLE>
- --------
*To be filed by amendment.
<PAGE>
EXHIBIT 4.1
-------------------------------------
MERCANTILE BANCORPORATION INC.
and
-------------------------------------
Trustee
------------------
INDENTURE
REGARDING SENIOR SECURITIES
Dated as of ___________, 199_
-------------------------------------
<PAGE>
Reconciliation and Tie Sheet*
between
Provisions of the Trust Indenture Act of 1939
and
Indenture, dated as of ___________, 199_
between
MERCANTILE BANCORPORATION INC.
and
__________________________________, Trustee
<TABLE>
Section of Act............. Section of Indenture
-------------- --------------------
<S> <C>
310(a)(1), (2)............. 5.08
310(a)(3), (4)............. Inapplicable
310(a)(5).................. 5.08
310(b)..................... **
310(c)..................... Inapplicable
311(a), (b)................ **
311(c)..................... Inapplicable
312........................ **
313(a)..................... **
313(b)(1).................. Inapplicable
313(b)(2).................. **
313(c), (d)................ **
314(a)..................... **
314(b)..................... Inapplicable
314(c)(1) and (2).......... 15.05
314(c)(3).................. Inapplicable
314(d)..................... Inapplicable
314(e)..................... 15.05
314(f)..................... Inapplicable
315(a)(c) and (d).......... 5.01
315(b)..................... 4.08
315(e)..................... 4.09
316(a)(1).................. 4.01 and 4.07
316(a)(2).................. Omitted
316(a) last sentence....... 6.04
316(b)..................... 4.04
316(c)..................... 6.05
317(a)..................... 4.02
317(b)..................... 3.04(a)
318(a)..................... 15.07
</TABLE>
- ----------
* This Reconciliation and Tie-sheet is not a part of the Indenture.
** Included pursuant to Section 318(c) of the Trust Indenture Act of 1939.
<PAGE>
TABLE OF CONTENTS*
-----------------
<TABLE>
Page
----
<S> <C>
Parties............................................................................. 1
Recitals............................................................................ 1
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.......................................................... 1
ARTICLE TWO
THE SECURITIES AND SECURITY FORMS
Section 2.01. Amount Unlimited; Issuable in Series................................. 6
Section 2.02. Form of Securities and of Trustee's Certificate of Authentication.... 8
Section 2.03. Securities in Global Form............................................ 8
Section 2.04. Denomination, Authentication and Dating of Securities................ 9
Section 2.05. Execution of Securities.............................................. 11
Section 2.06. Exchange and Registration of Transfer of Securities.................. 12
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities...................... 14
Section 2.08. Temporary Securities................................................. 15
Section 2.09. Payment of Interest; Interest Rights Preserved....................... 16
Section 2.10. Cancellation of Securities Paid, etc................................. 17
ARTICLE THREE
PARTICULAR COVENANTS OF THE COMPANY
Section 3.01. Payment of Principal and Interest.................................... 18
Section 3.02. Offices for Notices and Payments, etc................................ 18
Section 3.03. Provisions as to Paying Agent........................................ 19
Section 3.04. Statement as to Compliance........................................... 19
Section 3.05. Notice of Certain Defaults........................................... 20
Section 3.06. Limitation on Certain Dispositions and on Merger and Sale of Assets.. 20
Section 3.07. Limitation on Creation of Liens...................................... 21
Section 3.08. Corporate Existence.................................................. 21
</TABLE>
- -----------
* This table of contents is not part of the Indenture.
-i-
<PAGE>
<TABLE>
Page
----
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
<S> <C>
Section 4.01. Events of Default.................................................... 21
Section 4.02. Payment of Securities on Default; Suit Therefor...................... 23
Section 4.03. Application of Money Collected By Trustee............................ 24
Section 4.04. Proceedings by Securityholders....................................... 25
Section 4.05. Proceedings by Trustee............................................... 25
Section 4.06. Remedies Cumulative and Continuing; Delay or Omission Not Waiver..... 26
Section 4.07. Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders...................................................... 26
Section 4.08. Notice of Defaults................................................... 26
Section 4.09. Undertaking to Pay Costs............................................. 27
ARTICLE FIVE
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of Trustee............................... 27
Section 5.02. Reliance on Documents, Opinions, etc................................. 28
Section 5.03. No Responsibility for Recitals, etc.................................. 29
Section 5.04. Trustee, Paying Agents or Registrar May Own Securities............... 29
Section 5.05. Money to be Held in Trust............................................ 29
Section 5.06. Compensation and Expenses of Trustee................................. 29
Section 5.07. Officers' Certificate as Evidence.................................... 29
Section 5.08. Eligibility of Trustee............................................... 30
Section 5.09. Resignation or Removal of Trustee.................................... 30
Section 5.10. Acceptance by Successor Trustee...................................... 31
Section 5.11. Succession by Merger, etc............................................ 31
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
Section 6.01. Action by Securityholders............................................ 32
Section 6.02. Proof of Execution by Securityholders................................ 32
Section 6.03. Who Are Deemed Absolute Owners....................................... 33
Section 6.04. Company Owned Securities Disregarded................................. 33
Section 6.05. Revocation of Consents; Future Holders Bound......................... 34
ARTICLE SEVEN
SECURITYHOLDERS' MEETINGS
Section 7.01. Purpose of Meetings.................................................. 34
Section 7.02. Call of Meetings by Trustee.......................................... 34
</TABLE>
-ii-
<PAGE>
<TABLE>
Page
----
<S> <C>
Section 7.03. Call of Meetings by Company or Securityholders....................... 35
Section 7.04. Qualifications for Voting............................................ 35
Section 7.05. Regulations.......................................................... 35
Section 7.06. Quorum............................................................... 36
Section 7.07. Voting............................................................... 36
Section 7.08. No Delay of Rights by Meeting........................................ 36
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Securityholders........... 37
Section 8.02. Supplemental Indentures with Consent of Securityholders of a Series.. 38
Section 8.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures........................................................... 39
Section 8.04. Notation on Securities............................................... 39
Section 8.05. Evidence of Compliance of Supplemental Indenture to be Furnished
Trustee.............................................................. 39
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 9.01. Company May Consolidate, etc., on Certain Terms...................... 39
Section 9.02. Successor Corporation Substituted.................................... 40
ARTICLE TEN
REDEMPTION OF SECURITIES
Section 10.01. Applicability of Article............................................. 40
Section 10.02. Election to Redeem; Notice to Trustee................................ 40
Section 10.03. Selection by Trustee of Securities to be Redeemed.................... 40
Section 10.04. Notice of Redemption................................................. 41
Section 10.05. Deposit of Redemption Price.......................................... 41
Section 10.06. Securities Payable on Redemption Date................................ 42
Section 10.07. Registered Securities Redeemed in Part............................... 42
ARTICLE ELEVEN
SINKING FUNDS
Section 11.01. Applicability of Article............................................. 42
Section 11.02. Satisfaction of Sinking Fund Payments with Securities................ 43
Section 11.03. Redemption of Securities for Sinking Fund............................ 43
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE TWELVE
REPAYMENT AT THE OPTION OF HOLDERS
Section 12.01. Terms Set Forth in the Securities................................ 43
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge of Indenture........................................... 44
Section 13.02. Deposited Money to be Held in Trust by Trustee................... 44
Section 13.03. Paying Agent to Repay Money Held................................. 44
Section 13.04. Return of Unclaimed Money........................................ 45
Section 13.05. Discharge of Indenture as to Certain Series of Securities........ 45
Section 13.06. Repayment to Company of Deposits Made Pursuant to Section 13.05.. 46
Section 13.07. Deposits Irrevocable............................................. 47
Section 13.08. Reinstatement 47
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Securities Solely Corporate Obligations............ 47
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 15.01. Provisions Binding on Company's Successors....................... 47
Section 15.02. Official Acts by Successor Corporation........................... 47
Section 15.03. Addresses for Notices, etc....................................... 48
Section 15.04. Governing Law.................................................... 48
Section 15.05. Evidence of Compliance with Conditions Precedent................. 48
Section 15.06. Legal Holidays................................................... 48
Section 15.07. Trust Indenture Act to Control................................... 48
Section 15.08. No Security Interest Created..................................... 49
Section 15.09. Benefits of Indenture............................................ 49
Signatures............................................................................ 50
Acknowledgements...................................................................... 51
</TABLE>
-iv-
<PAGE>
THIS INDENTURE, dated as of __________________, 199_, is entered into by
MERCANTILE BANCORPORATION INC., a Missouri corporation (such corporation or,
subject to Article Nine, its successors and assigns, the "Company"), and
__________________________________, a ____________ banking association, duly
organized and existing under the laws of the United States of America (such
banking association or, subject to Article Five, its successors and assigns as
Trustee under this Indenture, the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness or warrants therefor to be
issued in one or more series (the "Securities"), as provided herein.
For and in consideration of the premises and the purchase of the Securities
by the holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01 (except
to the extent the application of such definitions is expressly limited to
certain instances, and except as otherwise expressly provided in this Indenture
or unless the context otherwise requires) for all purposes of this Indenture
will have the respective meanings specified in this Section 1.01. Except as
otherwise expressly provided in this Indenture or unless the context otherwise
requires, all other terms used in this Indenture that are defined in the Trust
Indenture Act or that the Trust Indenture Act defines by reference to the
Securities Act of 1933 or by Commission rule under the Trust Indenture Act will
have the meanings assigned to such terms in the Trust Indenture Act, in such
rule thereunder or in such Securities Act as in force at the date of the
execution of this Indenture.
Bank: The term "Bank" means (i) any institution, including savings
associations and other United States depository institutions, organized under
the laws of the United States, any State, the District of Columbia, Puerto Rico
or any territory of the United States that (a) accepts deposits that the
depositor has a legal right to withdraw on demand and (b) engages in the
business of making loans and (ii) any trust company organized under any of the
foregoing laws. Unless otherwise provided, for purposes of this Indenture, a
Bank also will be considered a "corporation."
Bearer Security: The term "Bearer Security" means any Security established
pursuant to Section 2.02 that is payable to bearer.
Bearer Security Tax Certificate: The term "Bearer Security Tax Certificate"
or "Certificate of non-U.S. Ownership", when used with respect to a Bearer
Security, means a certificate satisfying the requirements of Treasury Regulation
(S) 1.163-5(c)(2)(i)(D)(3), as that provision may be amended or redesignated
from time to time, which certificate shall be in a form approved by the Company.
Board of Directors: The term "Board of Directors" means the board of
directors of the Company or, which respect to any matter, any committee of the
Board of Directors duly authorized to act for the Board of Directors with
respect to such matter.
<PAGE>
Business Day: The term "Business Day", with respect to each series of
Securities, means any day other than a Saturday or Sunday that is neither a
legal holiday nor a day on which banking institutions are authorized or
obligated by law or regulation to close in either The City of New York or
___________________ or, with respect to Registered Notes that will bear interest
based on a specified percentage of London interbank offered quotation ("LIBOR"),
in London, England, or, in the case of Bearer Securities, in any Place of
Payment.
CEDEL: The term "CEDEL" means Cedel Bank, societe anonyme.
Commission: The term "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 Indenture
the 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: The term "Company" means the corporation identified as the Company
in the first paragraph of this Indenture until a successor corporation shall
succeed to and be substituted for the Company pursuant to the provisions of
Article Nine, and thereafter shall mean such successor corporation.
Company Order: The term "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman, its Chief Executive Officer, its President, any Executive Vice
President or any Senior Vice President and its Treasurer, any Assistant
Treasurer, its Secretary or any Assistant Secretary, and delivered to the
Trustee.
Consolidated Net Banking Assets: The term "Consolidated Net Banking Assets"
means all net assets owned directly or indirectly by a Subsidiary that is a Bank
as such net assets would be reflected on a consolidated balance sheet of the
Company prepared in accordance with generally accepted accounting principles
generally accepted at the time.
Constituent Bank: The term "Constituent Bank" means any Subsidiary that is
a Bank.
Controlled Subsidiary: The term "Controlled Subsidiary" means any
Subsidiary of which more than 80% of the aggregate voting power of the
outstanding shares of the Voting Stock at the time is owned directly or
indirectly by the Company or by one or more Controlled Subsidiaries or by the
Company and one or more Controlled Subsidiaries, after giving effect to the
issuance to any Person other than the Company or any Controlled Subsidiary of
Voting Stock of the Subsidiary issuable on exercise of options, warrants or
rights to subscribe for such Voting Stock or on conversion of securities
convertible into such Voting Stock.
Coupon: The term "coupon" means any interest coupon appertaining to a
Bearer Security.
Defaulted Interest: The term "Defaulted Interest" has the meaning specified
in Section 2.09.
Depositary: The term "Depositary," with respect to the Securities of any
series issuable or issued in the form of one or more Global Securities, means
the Depository Trust Company, New York, New York, or such other Person
designated as Depositary by the Company in the manner provided in Section 2.01,
until a successor Depositary shall have been appointed pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" means or
includes each person who is then a Depositary
-2-
<PAGE>
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series means the Depositary
with respect to the Securities of that series.
Euroclear: The term "Euroclear" means Morgan Guaranty Trust Company of
New York, Brussels Office, as operator of the Euroclear System.
Event of Default: The term "Event of Default" means any event specified in
Section 4.01, continued for the period of time, if any, and after the giving of
the notice, if any, designated in Section 4.01.
Global Security: The term "Global Security" means a Security issued to
evidence all or a part of a series of Securities in accordance with Section
2.03.
Indenture: The term "Indenture" means this instrument as originally
executed or, if amended or supplemented as provided in this Indenture, as so
amended or supplemented.
Interest: The term "interest," when used with respect to an Original Issue
Discount Security that by its terms bears interest only after Maturity, means
interest payable after Maturity.
Interest Payment Date: The term "Interest Payment Date," when used with
respect to any Security, means the Stated Maturity of an installment of interest
on such Security.
Maturity: The term "Maturity," when used with respect to any Security,
means the date on which the principal of such Security becomes due and payable
as therein or herein provided, whether at the Stated Maturity or by the
declaration of acceleration, call for redemption, repayment at the option of the
holder or otherwise.
Officers' Certificate: The term "Officers' Certificate," when used with
respect to the Company, means a certificate signed by the Chairman of the Board,
any Vice Chairman, the Chief Executive Officer, the President, any Executive
Vice President or any Senior Vice President and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Company. Except as
otherwise provided in this Indenture, each such certificate shall include the
statements provided for in Section 15.05.
Opinion of Counsel: The term "Opinion of Counsel" means an opinion in
writing signed by legal counsel, who may be an employee of or counsel to the
Company, and who shall be acceptable to the Trustee. Except as otherwise
provided in this Indenture, each opinion shall include the statements provided
for in Section 15.05.
Original Issue Discount Security; principal amount or aggregate principal
amounts: The term "Original Issue Discount Security" means any Security that
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 4.01. The terms "principal amount" or "aggregate principal amount," when
used with respect to Original Issue Discount Securities, have the meaning (or
meanings) specified in the manner contemplated by Section 2.01 for purposes of:
determining the amount due and payable in the event of an acceleration of
Maturity as provided in Section 4.01; the redemption provisions in Article Ten;
determining whether the holders of the requisite principal amount of Outstanding
Securities of any Series have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture; and determining
whether a quorum is present at a meeting of Securityholders.
-3-
<PAGE>
Paying Agent: The term "Paying Agent," when used with respect to Securities
of any series, means any Person authorized by the Company to pay the principal
of and any premium or interest on any Securities of that series on behalf of the
Company.
Person: The term "Person" means a corporation, an association, a
partnership, an organization, a trust, an individual, a government or a
political subdivision thereof or a governmental agency.
Place of Payment: The term "Place of Payment" has the meaning stated in
Section 2.01(5).
Predecessor Security: The term "Predecessor Security" of any particular
Security means every previous Security evidencing all or a portion of the same
debt that was evidenced by such particular Security, and, for the purposes of
this definition, any Security authenticated and delivered under Section 2.06 in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
Principal Constituent Bank: The term "Principal Constituent Bank" means, at
any time, Mercantile Bank National Association and any other Constituent Bank,
the total assets of which (as set forth in the most recent statement of
condition of such Constituent Bank) equal more than 20% of the total assets of
all Constituent Banks as determined from the most recent statements of condition
of the Constituent Banks.
Principal office of the Trustee: The term "principal office of the Trustee"
or any other similar term means the principal office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office, at the date of this instrument, is located at
________________________, _______________, _________________.
Redemption Date: The term "Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
Redemption Price: The term "Redemption Price," when used with respect to
any Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
Registered Security: The term "Registered Security" means any Security, in
the form of registered securities established pursuant to Section 2.02, that is
registered in the Security Register.
Regular Record Date: The term "Regular Record Date," with respect to the
interest payable on any Interest Payment Date on the Securities of any series,
means the date specified for that purpose as contemplated by Section 2.01.
Responsible Officer: The term "Responsible Officer," when used with respect
to the Trustee, means the Chairman or Vice Chairman of its board of directors,
the Chairman or Vice Chairman of the executive committee of the board of
directors, the President, any vice President, any senior trust officer, any
trust officer, any assistant trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be the above-named officers, or
to whom any corporate trust matter is referred because of his knowledge of and
familiarity with the particular subject.
Security or Securities; Outstanding: The term "Security" or "Securities"
has the meaning stated in the recital of this Indenture and means any Security
or Securities, as the case may be, authenticated and delivered pursuant to this
Indenture. Whenever this Indenture refers to any interest on or with
-4-
<PAGE>
respect to any Security that is represented by a coupon, such reference to the
Security also shall include reference to a coupon.
The term "Outstanding," when used with reference to Securities of any
series or the related coupons, subject to the provisions of Section 6.04, means,
as of any particular time, all Securities of such series or any related coupons
authenticated and delivered by the Trustee pursuant to this Indenture except:
(a) such Securities and coupons theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(b) such Securities and coupons, or portions thereof, for the payment
or redemption of which money in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent), provided that
if such Securities are to be redeemed prior to the Maturity thereof, notice
of such redemption shall have been provided as specified in Article Ten, or
provision satisfactory to the Trustee shall have been made for mailing such
notice; and
(c) Securities or coupons in lieu of or in substitution for which
other Securities or coupons shall have been authenticated and delivered
pursuant to the terms of Section 2.06, except to the extent that a bona
fide holder in due course of any such Securities shall have presented proof
satisfactory to the Trustee that such holder is a bona fide holder in due
course of any such Securities or coupons.
Security Register: The term "Security Register," when used with respect to
a Registered Security, has the meaning specified in Section 2.06(b).
Securityholder: The term "Securityholder," "holder of Securities," "holder"
or other similar term, when used with respect to a Registered Security, means
any Person in whose name at the time a particular Registered Security is
registered on the Security Register and, when used with respect to a Bearer
Security or coupon, the bearer thereof.
Special Record Date: The term "Special Record Date" has the meaning
specified in Section 2.09.
Stated Maturity: The term "Stated Maturity," when used with respect to any
Security or any payment of premium or any installment of interest thereon, means
the date specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
payment of premium or such installment of interest is due and payable.
Subsidiary: The term "Subsidiary" means any corporation of which a majority
of the aggregate voting power of the outstanding Voting Stock at the time shall
be owned by the Company or by the Company and one or more Subsidiaries or by one
or more Subsidiaries.
Trust Indenture Act: The term "Trust Indenture Act" means the Trust
Indenture Act of 1939 as it was in force at the date of execution of this
Indenture, except as provided in Section 8.03; provided, however, that, in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
Trustee: The term "Trustee" means the Person identified as the Trustee in
the first paragraph of this Indenture until a successor shall succeed to the
trusts created by this Indenture pursuant to the provisions of Article Five, and
thereafter shall mean such successor.
-5-
<PAGE>
United States: The term "United States" means the United States of America
(including the District of Columbia) and its possessions.
U.S. Government Obligations: The term "U.S. Government Obligations" has the
meaning specified in Section 13.05(b).
Vice President: The term "vice president" or "Vice President," when used
with respect to the Company or the Trustee, means any such officer whether or
not designated by a number or a word or words added before or after such title.
Voting Stock: The term "Voting Stock" of a corporation or other entity
means stock of the class or classes having general voting power in an election
of the board of directors, managers or trustees of such corporation or other
entity (irrespective of whether, at the time, stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
ARTICLE TWO
THE SECURITIES AND SECURITY FORMS
Section 2.01. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. Securities may be issued in one or more series.
The terms and conditions listed below, as applicable, of any series of
Securities shall be established either in an indenture supplemental hereto or in
or pursuant to a resolution of the Board of Directors:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, other Securities of the
series pursuant to Section 2.05, 2.06, 2.07, 8.04 or 10.07);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the formula by
which interest shall be calculated by the Company or an agent designated
for such purpose, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Registered Security on
any Interest Payment Date;
(5) the place or places, if any, in addition to those specified
herein, where the principal of and any premium or interest on Securities of
the series shall be payable (the "Place of Payment"), any Registered
Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices and
demands to or upon the Company in respect of the Securities of the series
and this Indenture may be served and where notices to holders pursuant to
this Indenture will be published;
-6-
<PAGE>
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which, the period or periods within which and the other terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation, which in the
case of Securities of any series that are repayable at the option of a
holder thereof shall be set forth in the form of such Security;
(8) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if
other than the date of original issuance of the first Security of such
series of like tenor and term to be issued;
(9) whether the 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 (if other that the Depository Trust Company) for such Global
Security or Securities and whether such global form shall be permanent or
temporary;
(10) if Securities of the series are to be issuable initially in the
form of one or more temporary Global Securities, the circumstances under
and the manner in which such temporary Global Securities can be exchanged
for definitive Securities of the series and whether such definitive
Securities will be Registered Securities, Bearer Securities or both and
will be in global form;
(11) the denominations in which 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 Bearer Securities of such
series, if any, shall be issuable if other than the denomination of $5,000;
(12) any Event of Default with respect to the Securities of such
series, if not set forth herein;
(13) the form of Securities of such series;
(14) the Person or Persons who shall be Security registrar for the
Securities of such series if other than as provided for in this Indenture,
and the place or places where the Security registrar for such series shall
be maintained and the Person or Persons who will be the initial Paying
Agent or Agents, if other than as provided for in this Indenture;
(15) if warrants for Securities of any series are to be issued, the
form in which the warrants shall be issued, the circumstances under and the
manner in which the warrants may be exercised, any obligation of the
Company concerning any Securities underlying the warrants and any other
terms or conditions regarding the warrants and any Securities underlying
the warrants; and
-7-
<PAGE>
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any series and the coupons appertaining to Bearer
Securities of such series, if any, issued under this Indenture in all respects
shall be equally and ratably entitled to the benefits hereof with respect to
such series without preference, priority or distinction on account of actual
time or times of authentication and delivery or Maturity of the Securities of
such series. All Securities of the same series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except as to denomination and except as may otherwise be provided either in an
indenture supplemental hereto or a resolution of the Board of Directors.
Section 2.02. Form of Securities and of Trustee's Certificate of
Authentication. The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series and the certificates of authentication
on the Securities shall be in substantially the form as shall be established as
provided in Section 2.01 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 any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may be determined consistently herewith by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. If the form of Securities of any series or coupons
(including any Global Security) is established by action taken pursuant to a
resolution of the Board of Directors, a copy of an appropriate record of such
action shall be certified by the Secretary or any Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect as of the date of such certificate, and shall be delivered to
the Trustee at or prior to the delivery of the Company Order contemplated by
Section 2.04(b) or the authentication and delivery of such Securities.
Each Bearer Security and Coupon shall bear a legend substantially to the
following effect:
"Any United States Person will be subject to limitations under the
United States income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code."
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities or coupons, as evidenced by their execution of such Securities
or coupons.
The form of Trustee's certificate of authentication for all Securities
shall be as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned Indenture.
, as Trustee
----------------------------------
by
--------------------------------------------
Authorized Officer
Section 2.03. Securities in Global Form.
(a) If Securities of a series are issuable in whole or in part in global
form, as specified in the manner contemplated by Section 2.01, then,
notwithstanding the provisions of clause (11) of Section 2.01 or Section 2.04,
such Global Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding
-8-
<PAGE>
Securities from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby from time to time may be reduced to
reflect exchanges. Any endorsement of a Global Security to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made in such manner and upon instructions given by such Person
or Persons as shall be specified in such Global Security or in the Company Order
to be delivered to the Trustee pursuant to Section 2.04(b).
(b) The provisions of the last sentence of Section 2.05(b) shall apply to
any Securities represented by a Global Security if such Securities were never
issued and sold by the Company (whether because of failure of settlement or
otherwise) and the Company delivers to the Trustee the Global Security together
with written instructions with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 2.05(b).
(c) Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
Section 2.04. Denomination, Authentication and Dating of Securities.
(a) Securities of each series shall be issuable in such form and
denomination as shall be specified in the form of Security for such series
approved or established pursuant to Section 2.02. In the absence of any
specification, as provided in Section 2.01, with respect to the 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 denomination of
$5,000. Each Registered Security shall be dated as of the date of its
authentication. Each Bearer Security shall be dated as of the date specified in
the manner contemplated by Section 2.01.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication. Except as otherwise provided in this
Article Two, the Trustee thereupon shall authenticate and deliver such
Securities in accordance with a Company Order; provided, however, that in
connection with its original issuance 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 from the person
entitled to receive the Bearer Security a Bearer Security Tax Certificate and
only if the Company has no reason to know that such certificate is false.
(c) To the extent authorized in or pursuant to a resolution of the Board
of Directors or established in an indenture supplemental hereto, such Company
Order may be electronically transmitted and may provide instructions as to
registration of holders, principal amounts, rates of interest, Stated Maturities
and other matters contemplated by such resolution of the Board of Directors or
supplemental indenture to be so instructed in respect thereof.
(d) In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and, subject to Section 5.01, shall be
fully protected in relying upon:
(i) A copy of the resolution or resolutions of the Board of Directors
in or pursuant to which the terms and form of the Securities were
established, 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 as of the date of such certificate;
-9-
<PAGE>
(ii) an executed supplemental indenture, if any;
(iii) an Officers' Certificate delivered in accordance with Section
15.05; and
(iv) an Opinion of Counsel which shall state:
(A) that the form of such Securities and coupons, if any, has
been established by a supplemental indenture or by or pursuant to a
resolution of the Board of Directors in accordance with Sections 2.01
and 2.02 and in conformity with the provisions of this Indenture;
(B) that the terms of such Securities and coupons, if any, have
been established in accordance with Section 2.01 and in conformity
with the provisions of this Indenture;
(C) that such Securities, when authenticated and delivered by
the Trustee and issued (with coupons attached, if applicable) by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles;
(D) that all conditions precedent, if any, provided for in this
Indenture have been complied with; and
(E) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and coupons, if any,
have been complied with.
(e) If the Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee, in
accordance with this Section 2.04 and the Company Order with respect to such
series, shall authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction.
(f) The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.04 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee or a
trust committee of directors or trustees or vice presidents shall determine that
such action would expose the Trustee to personal liability to existing holders.
(g) Notwithstanding any contrary provision herein, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary
for the Company to deliver to the Trustee a Company Order, Officers'
Certificate, resolution of the Board of Directors, supplemental indenture or
Opinion of Counsel otherwise required pursuant to Section 2.04(b) or Section
2.04(d) at or prior to the time of authentication of each Security of such
series if such documents are delivered to the Trustee or its agent at or prior
to the authentication upon original issuance of the first Security of such
series to be
-10-
<PAGE>
issued. In such event, any subsequent request by the Company to the Trustee to
authenticate Securities of such Series upon original issuance shall constitute a
representation and warranty by the Company that, as of the date of such request,
the statements made in the Officers' Certificate or other certificates delivered
pursuant to Section 2.04(d) shall be true and correct as if made on such date. A
Company Order, Officers' Certificate, resolution of the Board of Directors or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in this Section 2.04(g) may provide that Securities that
are the subject thereof will be authenticated and delivered by the Trustee or
its agent on original issue from time to time in the aggregate principal amount
established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic, electronic or written order of persons designated in such Company
Order, supplemental indenture or resolution of the Board of Directors (any such
telephonic or electronic instructions to be promptly confirmed in writing by
such persons) and that such persons are authorized to determine, consistent with
such Company Order, supplemental indenture or resolution of the Board of
Directors, such terms and conditions of said Securities as are specified in such
Company Order, supplemental indenture or resolution of the Board of Directors.
(h) Each Depositary designated pursuant to clause (9) of Section 2.01 for
a Global Security in registered form, at the time of its designation and at all
times while it serves as Depositary, shall be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
Section 2.05. Execution of Securities.
(a) The Securities and the related coupons shall be signed in the name and
on behalf of the Company by the manual or facsimile signature of its Chairman of
the Board, its Chief Executive Officer or its President or, in lieu thereof, of
any Senior Vice President or its Treasurer and attested by its Secretary, under
its corporate seal (which may be printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise). For the purpose of any such signature or
attestation, the Company may adopt and use the facsimile signature of any person
who has been or is or shall be such officer.
(b) No Security or attached coupon shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose unless such security
bears thereon a certificate of authentication substantially in the form set
forth in Section 2.02 manually executed by the authorized signatory of the
Trustee. Such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered under this Indenture. Except as permitted by
Section 2.07, 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 Security or portions thereof
shall have been duly authenticated and delivered hereunder but never issued and
sold by the Company (whether because of failure of settlement or otherwise), and
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement stating that such
Security or portion thereof has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
(c) In case any officer of the Company whose manual or facsimile signature
appears on any of the Securities or coupons shall cease to be such officer
before the Securities or coupons so signed shall have been authenticated and
delivered by the Trustee, or disposed of by the Company, such Securities or
coupons nevertheless may be authenticated and delivered or disposed of as though
the person whose manual or facsimile signature appears on such Securities or
coupons had not ceased to be such officer
-11-
<PAGE>
of the Company; and any Security or coupon may bear the manual or facsimile
signature on behalf of the Company by such persons as, at the actual date of the
execution of such Security or coupon, shall be the proper officers of the
Company, although at the date of the execution of this Indenture any such person
was not such an officer.
Section 2.06. Exchange and Registration of Transfer of Securities.
(a) Registered Securities of any series may be exchanged for a like
aggregate principal amount of Registered Securities of other authorized
denominations and of like tenor and terms of the same series. Registered
Securities to be exchanged shall be surrendered at the office or agency to be
maintained by the Company pursuant to Section 3.02 in each Place of Payment for
such series of Registered Securities, and the Company shall execute and cause to
be registered, and the Trustee shall authenticate and deliver in exchange
therefor, the Registered Security or Securities which the Securityholder making
the exchange shall be entitled to receive. In no event may Registered
Securities, including Registered Securities received in exchange for Bearer
Securities, be exchanged for Bearer Securities.
(b) For each series of Registered Securities, the Company shall cause to
be kept in at least one such office or agency a Security register (the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for registration of Registered Securities and
registration of transfer of Registered Securities as provided in this Article
Two. Each such Security Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all
reasonable times such Security Registers shall be open for inspection by the
Trustee. Upon due presentment for registration of transfer of any Registered
Security of any series at any such office or agency, the Company shall execute
and register and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Securities of the same
series and of like tenor and terms for an equal aggregate principal amount.
Unless otherwise provided (pursuant to Section 2.01 or otherwise), the Company
initially appoints the Trustee, at the principal office of the Trustee, as a
Security registrar for each series of Registered Securities.
(c) All Registered Securities presented for registration of transfer or
for exchange or payment, if so required by the Company or the Trustee, shall be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the holder or his attorney duly authorized in writing.
(d) To the extent specified in the manner provided by Section 2.01,
Registered Securities or Bearer Securities of any series may be issued in
exchange for Bearer Securities (except as otherwise specified in the manner
contemplated by Section 2.01 with respect to a Bearer Security in global form)
of the same series, of any authorized denomination and of like tenor and terms
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any office or agency specified in the manner provided by Section
2.01, with all unmatured coupons and all unpaid matured coupons thereto
appertaining. If the holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or unpaid matured coupon or coupons, 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 amount
represented by such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to hold
harmless each of them and any Paying Agent. 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 3.02, 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. Whenever any Securities are so surrendered for
exchange, the
-12-
<PAGE>
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the holder making the exchange is entitled to receive.
(e) If at any time the Depositary for the Global Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Global Securities of such series or if at any time the Depositary for
the Registered Securities of such series shall no longer be eligible under
Section 2.03 because it no longer is a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation,
the Company shall appoint a successor Depositary with respect to the Securities
of such series. If a successor Depositary for the Global 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 2.01(9) shall no longer be effective with respect to the
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series 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.
(f) The Company at any time and in its sole discretion may determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series 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.
(g) If specified by the Company pursuant to Section 2.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee shall authenticate and deliver:
(i) to each Person specified by such Depositary a new Security or new
Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
(ii) 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 Securities delivered to holders thereof.
(h) In any exchange provided for in Section 2.06(e), 2.06(f) or 2.06(g),
the Company will execute and the Trustee will authenticate and deliver
Securities (i) in definitive registered form in authorized denominations, if the
Securities of such series are issuable as Registered Securities, (ii) in
definitive bearer form in authorized denominations, with unmatured coupons
attached, if the Securities of such series are issuable as Bearer Securities or
(iii) as either Registered or Bearer Securities, if the Securities of such
series are issuable in either form; provided, however, that (A) 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 Bearer Security Tax Certificate, (B)
delivery of a Bearer Security shall occur only outside the United States and (C)
no
-13-
<PAGE>
definitive Bearer Security will be issued if the Company or the Trustee has
reason to know that such certificate is false.
(i) Upon the exchange of all of the Global Security for Securities in
certificated form, such Global Security shall be cancelled by the Trustee. The
exchange of any portion of a Global Security for Securities in certificated form
shall be subject to Section 2.03(a). Registered Securities issued in exchange
for all or part of a Global Security 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 Securities are so registered. The Trustee
shall deliver Bearer Securities issued in exchange for all or part of a Global
Security 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
(A) no definitive Bearer Security shall be delivered in exchange for all or part
of a temporary Global Security unless the Company or its agent shall have
received from the person entitled to receive the definitive Bearer Security a
Bearer Security Tax Certificate, (B) delivery of a Bearer Security shall occur
only outside the United States and (C) no definitive Bearer Security will be
issued if the Company or the Trustee has reason to know that any such
certificate is false.
(j) No service charge shall be made for any exchange or registration of
transfer of 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 such exchange or registration of transfer.
(k) The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any particular series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption under Section
10.03 and ending at the close of business on the day of such mailing, (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 that series, provided that such Registered Security
shall be surrendered immediately for redemption with written instruction for
payment consistent with the provisions of this Indenture.
(l) Notwithstanding anything herein to the contrary: the exchange of
Bearer Securities for Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; and neither the Company nor
the Trustee or any 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 could 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
Order to the Security registrar.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities.
(a) In case any temporary or definitive Security of any series or any
related coupon shall become mutilated or be destroyed, lost or stolen, the
Company in its discretion may execute, and upon its request and in the absence
of notice to the Company and the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Trustee shall authenticate and deliver a
new Security of the same series or related coupon, of equal aggregate principal
amount and of like tenor and terms bearing
-14-
<PAGE>
a number not contemporaneously outstanding, in exchange and substitution for the
mutilated Security or coupon, or in lieu of and in substitution for the Security
or coupon so destroyed, lost or stolen. In every case the applicant for a
substitute Security or coupon shall furnish to the Company and to the Trustee
such security or indemnity as may be required by them to hold each of them
harmless, and, in every case of destruction, loss or theft, the applicant also
shall furnish to the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Security or coupon and of the
ownership of such Security or coupon.
(b) The Trustee may authenticate any such substitute Security and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substitute Security or coupon, 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 reasonable expenses
(including the fees and expenses of the Trustee) connected therewith. In case
any Security or coupon which has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company, instead of issuing a
substitute Security or coupon, may pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security or coupon)
if the applicant for such payment shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to hold each of
them harmless and, in case of destruction, loss or theft, evidence satisfactory
to the Company and the Trustee of the destruction, loss or theft of such
Security or coupon and of the ownership of such Security or coupon.
(c) Every substitute Security or coupon issued pursuant to the provisions
of this Section 2.07 by virtue of the fact that any Security or coupon is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security or coupon
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities or
coupons duly issued under this Indenture. All Securities or coupons shall be
held and owned by the holders upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
(d) Notwithstanding the foregoing, the payment of principal of and any
premium or interest on Bearer Securities, except as otherwise provided in
Section 3.02, shall be payable only at an office or an agency located outside of
the United States, and, with respect to any coupons, interest represented
thereby shall be payable only upon presentation and surrender of such coupons.
Section 2.08. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute and the Trustee shall authenticate and deliver temporary
Securities (printed or lithographed). Temporary Securities shall be issuable in
any authorized denomination, and substantially in the form of the definitive
Securities of such series (and of like tenor and terms) in lieu of which they
are issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, but with such omissions, insertions and variations
as may be appropriate for temporary Securities, all as may be determined by the
Company. Such temporary securities may be in global form, representing all or
any part of the Outstanding Securities of such series.
(b) Unless otherwise provided pursuant to Section 2.01:
-15-
<PAGE>
(i) Except in the case of temporary Securities in global form, every
such temporary Security shall be authenticated by the Trustee in
substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company will execute and deliver
to the Trustee definitive Securities of such series and thereupon any or
all temporary Securities of such series (accompanied, if applicable, by all
unmatured coupons and all unpaid matured coupons appertaining thereto) may
be surrendered in exchange therefor at the principal office of the Trustee,
and the Trustee shall authenticate and deliver in exchange for such
temporary Securities an equal aggregate principal amount of definitive
Securities of such series of authorized denominations. Such exchange shall
be made at the Company's expense and without any charge to the holder.
Until so exchanged, the temporary Securities of any series in all respects
shall be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered under this Indenture.
Notwithstanding the foregoing, no Bearer Security shall be delivered in
exchange for a Registered Security, and a Bearer Security shall be
delivered in exchange for a Bearer Security only in compliance with the
conditions set forth in Section 2.06.
(ii) If Securities of any series are issued in temporary global form,
any such temporary Global Security, unless otherwise provided pursuant to
Section 2.01, shall be delivered to the Depositary for the benefit of
Euroclear and CEDEL for credit to the respective accounts of the
beneficial owners of such Securities or to such other accounts as they may
direct.
(iii) Any such temporary Global Security shall be exchangeable, on
the terms and in the manner set forth therein, in whole or in part, for an
equal aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor and terms as the
portions of such temporary Global Security to be exchanged. Any definitive
Bearer Securities shall be delivered in exchange for a portion of a
temporary Global Security only outside the United States and only upon
receipt by the Trustee from the Person entitled to receive such definitive
Bearer Security of a Bearer Security Tax Certificate.
(iv) Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall be entitled in all respects to the same
benefits under this Indenture as definitive Securities of the same series
and of like tenor and terms authenticated and delivered hereunder, except
that any interest payable with respect to a temporary Global Security will
be paid as specified therein.
Section 2.09. Payment of Interest; Interest Rights Preserved. 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. Payment of interest on any Registered Security may be made as
provided in Section 3.02.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date ("Defaulted Interest")
forthwith shall cease to be payable to the Holder on
-16-
<PAGE>
the relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as provided
in this clause. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more that 15 nor
less than ten days prior to the date of the proposed payment and not less
than ten days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee promptly shall notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first class, postage
prepaid, to each Security Holder at his address as it appears in the
Security Register, not less than ten days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been given as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following clause
(ii).
(ii) The Company may make payment of any Defaulted Interest on any
such Security in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of that
series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.09, each Security of
any series delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, that were carried by such
other Security.
Subject to the limitations set forth in Section 3.02, the holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 3.02.
Section 2.10. Cancellation of Securities Paid, etc. All Securities and
coupons surrendered for the purpose of payment, exchange or registration of
transfer, if surrendered to the Company or any Paying Agent or any Security
registrar, shall be delivered to the Trustee and promptly cancelled by the
Trustee or, if surrendered to the Trustee, promptly shall be cancelled by it;
and no Securities or coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee may destroy
cancelled Securities or coupons and will deliver a certificate of such
destruction to the Company.
-17-
<PAGE>
ARTICLE THREE
PARTICULAR COVENANTS OF THE COMPANY
Section 3.01. Payment of Principal and Interest. The Company duly and
punctually will pay or cause to be paid the principal of and any premium and
interest on the Securities of each series at the places, at the respective times
and in the manner provided in this Indenture and in the Securities. Any interest
due on Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature.
Section 3.02. Offices for Notices and Payments, etc. So long as any
Securities of a series remain Outstanding, the Company will maintain in each
Place of Payment for such series of Securities an office or agency where the
Securities of that series (but, except as otherwise provided below, unless such
Place of Payment is located outside the United States, not Bearer Securities)
may be presented for payment, for registration of transfer and for exchange as
provided in this Indenture and where notices and demands to or upon the Company
in respect of the Securities or of this Indenture may be served. If 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 that is located outside the United States where
Securities of such series and the related coupons may be presented for payment.
The Company will give to the Trustee prompt written notice of the location of
each such office or agency and of any change of location thereof. In case the
Company shall fail to maintain any such office or agency or shall fail to give
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the principal
office of the Trustee, and the Company hereby initially appoints the Trustee its
agent to receive all such presentations and demands, except that Bearer
Securities of that series and the related coupons may be presented for payment
at the place specified for that purpose pursuant to Section 2.01(5). Unless
otherwise provided pursuant to Section 2.01, the Company hereby initially
designates as the Place of Payment for each series of Securities (other than
Bearer Securities of that series and the related coupons) the Borough of
Manhattan, The City of New York, New York and appoints the Trustee, at the
principal office of the Trustee, as Paying Agent in such city. Notwithstanding
any other provisions to the contrary, the Company at its option may make payment
of principal and any premium and interest with respect to any Registered
Security by check mailed to the Person entitled thereto, as such address appears
on the Security Register, except that a holder of $10,000,000 or more in
aggregate principal amount of Securities of such series and of like tenor and
terms will be entitled to receive payments by wire transfer of immediately
available funds if appropriate wire transfer instructions shall have been
received in writing by the Trustee not later than ten Business Days prior to the
applicable Interest Payment Date.
No payment of principal of or any premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that
payment of principal of and any premium and interest 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 or interest 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 2.01 with
respect to any series of Securities, at the option of the holder of any Bearer
Security or related coupon payment may be made by mailing a check to an address
outside the United States or by transfer to an account maintained by the payee
with a bank located outside the United States.
-18-
<PAGE>
The Company also from time to time may designate one or more offices or
agencies (in or outside of such Place of Payment) where the Securities of one or
more series and any appurtenant coupons (subject to the preceding paragraph) may
be presented or surrendered for any and all such purposes, and from time to time
may rescind such designations. The Company will give prompt written notice to
the Trustee of any such designation and any change in the location of any such
office or agency.
Section 3.03. Provisions as to Paying Agent.
(a) The Company, with respect to the Securities of each series, prior to
each due date of principal of or any premium or interest on such Securities,
will deposit with the Paying Agent for such Securities a sum sufficient to pay
the principal, premium or interest so becoming due, such sum to be held in trust
for the benefit of the persons entitled to such principal, premium or interest.
If the Company shall appoint a Paying Agent other than the Trustee with respect
to the Securities of any series, the Company will notify the Trustee of its
making, or failure to make, any such payment; and the Company also shall cause
any such Paying Agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section 3.03, as follows:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of or any premium or interest on such Securities
(whether such sums have been paid to it by the Company or by any other
obligor on such Securities) in trust for the benefit of the Persons
entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on such Securities) to make any payment of the
principal of or any premium or interest on such Securities when the same
shall be due and payable; and
(3) that it will forthwith pay to the Trustee, at any time during the
continuance of an Event of Default, upon the written request of the
Trustee, all sums so held by it as such agent.
(b) If the Company shall act as its own Paying Agent with respect to the
Securities of any series, on or before each due date of the principal of or any
premium or interest on the Securities of such series, it will set aside,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay such principal, premium or interest so becoming due and
will notify the Trustee of any failure to take such action and of any failure by
the Company (or by any other obligor under such Securities) to make any payment
of the principal of or any premium or interest on such Securities when the same
shall become due and payable.
(c) Notwithstanding anything in this Section 3.03 to the contrary, the
Company, at any time, for the purpose of obtaining a satisfaction and discharge
of this Indenture or for any other reason, may pay or by Company Order direct
any Paying Agent to pay to the Trustee all sums held in trust by the Company or
any Paying Agent under this Indenture, such sums to be held by the Trustee upon
the trusts contained in this Indenture.
(d) Notwithstanding anything in this Section 3.03 to the contrary, the
agreement to hold sums in trust as provided in this Section 3.03 is subject to
Sections 13.03 and 13.04.
Section 3.04. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each calendar year commencing with the
first calendar year following the issuance of Securities of any series under
this Indenture, a written certificate of the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
covering the period from
-19-
<PAGE>
the date of issuance of such Securities to the end of the calendar year in which
such Securities were issued, in the case of the first such certificate, and
covering the preceding calendar year, in the case of each such subsequent
certificate, stating, as to each signer of such certificate, that:
(1) a review of the activities of the Company during the year and of
performance under this Indenture has been made under his supervision;
(2) to the best of his knowledge, based on such review, the Company
has fulfilled all its conditions and covenants under this Indenture
throughout such year, or, if there has been a default in the fulfillment of
any such condition or covenant, specifying each such default known to him
and the nature and status of such default; and
(3) such certificate sets forth as of the end of such year a list of
all Principal Constituent Banks.
Section 3.05. Notice of Certain Defaults. The Company will deliver to the
Trustee within five days after the occurrence thereof written notice of any
event which with the giving of notice or the lapse of time or both would be an
Event of Default under Section 4.01(c) or Section 4.01(d).
Section 3.06. Limitation on Certain Dispositions and on Merger and Sale of
Assets. Except as otherwise provided in Article Nine, the Company will not:
(a) sell, assign, transfer or otherwise dispose of any shares of, or
securities convertible into or options, warrants or rights to subscribe for or
purchase shares of, Voting Stock of a Principal Constituent Bank, and will not
permit a Principal Constituent Bank to issue any shares of, or securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, such Voting Stock if, in each case, after giving effect to any such
transaction, such Principal Constituent Bank would cease to be a Controlled
Subsidiary; or
(b) permit a Principal Constituent Bank to:
(i) merge or consolidate with any other corporation, unless the
surviving corporation is, or upon consummation of the merger or
consolidation will become, the Company or a Controlled Subsidiary; or
(ii) lease, sell or transfer all or substantially all its properties
and assets to any corporation or other Person, except to the Company or a
Controlled Subsidiary or a Person that, upon such lease, sale or transfer,
will become the Company or a Controlled Subsidiary.
Notwithstanding the foregoing, any such sale, assignment, transfer or other
disposition of securities, any such merger or consolidation or any such lease,
sale or transfer of properties and assets shall not be prohibited if required
(i) by any law or any rule, regulation or order of any governmental agency or
authority or (ii) as a condition imposed by any law or any rule, regulation or
order of any governmental agency or authority with respect to the acquisition by
the Company or any Controlled Subsidiary, directly or indirectly, through
purchase of securities or assets, or a merger, consolidation or otherwise, of
any Person, provided that after giving effect to such acquisition (A) such
Person will be a Controlled Subsidiary, (B) the Consolidated Net Banking Assets
of the Company will be at least equal to the Consolidated Net Banking Assets of
the Company prior thereto and (C) the Principal Constituent Bank will be a
Controlled Subsidiary.
-20-
<PAGE>
Section 3.07. Limitation on Creation of Liens. So long as any of the
Securities shall be Outstanding, the Company will not create, assume, incur or
suffer to be created, assumed or incurred or to exist any pledge, encumbrance or
lien, as security for indebtedness for borrowed money, upon any shares of, or
securities convertible into or options, warrants or rights to subscribe for or
purchase shares of, Voting Stock of a Principal Constituent Bank if, treating
such pledge, encumbrance or lien as a transfer of the shares of, or securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock subject thereto to the secured party, the Principal
Constituent Bank would not be a Controlled Subsidiary.
Section 3.08. Corporate Existence. Except as otherwise provided in
Article Nine, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Securityholders.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01. Events of Default. "Event of Default," when used with
respect to Securities of any series, means each of the following events unless
it is either inapplicable to a particular series or is specifically deleted or
modified in the supplemental indenture or resolution of the Board of Directors
under which such series of Securities is issued or in the form of Security for
such series:
(a) default in the payment of any installment of interest upon any of the
Securities of that series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days;
(b) default in the payment of the principal of or any premium on any of the
Securities of that series as and when the same shall become due and payable at
their Stated Maturity, upon redemption, by declaration or otherwise;
(c) default in the payment of any sinking fund installment or analogous
obligation as and when the same shall become due and payable by the terms of the
Securities of that series;
(d) a default or event of default as defined or designated in any mortgage,
indenture, loan agreement or instrument under which there may be issued or
borrowed, or by which there is secured or evidenced, any indebtedness of the
Company (other than Securities of such series or indebtedness owed by the
Company to any Subsidiary) or any Subsidiary (other than indebtedness of any
Subsidiary owing to the Company or to another Subsidiary), whether such
indebtedness now exists or shall be created hereafter, shall happen and (i) not
less than $20,000,000 of such indebtedness shall be past due under such
mortgage, indenture, loan agreement or instrument or such default or event of
default shall result in not less than $20,000,000 of such indebtedness becoming
or being declared due and payable and (ii) such indebtedness or such
declaration, as the case may be, shall not have been discharged or rescinded or
annulled within 30 days after the date on which written notice thereof is given
to the Company by the Trustee or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the Securities of that series
then Outstanding;
-21-
<PAGE>
(e) a final judgment or judgments or order or orders for the payment of
money in excess of $20,000,000 shall be entered against the Company or one or
more Principal Constituent Banks and within 90 days after entry thereof such
judgment or judgments or order or orders shall not have been discharged or the
execution thereof stayed pending appeal or within 90 days after the expiration
of any such stay such judgment or judgments or order or orders shall not have
been discharged;
(f) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company in the Securities of
such series or in this Indenture (other than a covenant or agreement a default
in the performance of which or the breach of which is specifically provided for
elsewhere in this Section 4.01 or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other than
such series), and continuance of such failure for a period of 90 days after the
date on which written notice of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or to the Company
and the Trustee by the holders of at least 25% in aggregate principal amount of
the Securities of such series at the time Outstanding;
(g) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company or a Principal Constituent Bank in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or a
Principal Constituent Bank or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or
(h) the Company or a Principal Constituent Bank shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or a Principal Constituent
Bank or for any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due or shall take any corporate action in furtherance of
any of the foregoing.
If an Event of Default with respect to the Securities of any series at the time
Outstanding occurs and is continuing, then and in each such case, unless the
principal of all the Securities of such series already shall have become due and
payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding, by notice in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the principal amount of all the Securities of that series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable. This provision, however, is subject to the
condition that, at any time after such a declaration of acceleration, and before
any judgment or decree for the payment of the money due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Company and to the Trustee, may waive all defaults and rescind and
annul such declaration and its consequences, if:
(1) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay:
(A) all matured installments of interest on all the Securities of
that series and the principal of and any premium on any and all
Securities of that series that shall have become due otherwise than by
acceleration (with interest on overdue installments of
-22-
<PAGE>
interest (to the extent that payment of such interest is enforceable
under applicable law) and on such principal and premium at the rate
borne by the Securities of that series, to the date of such payment or
deposit); and
(B) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) any and all defaults with respect to Securities of that series
under this Indenture, other than the nonpayment of principal of and accrued
interest on Securities that shall have become due by acceleration, shall
have been cured or waived as provided in Section 4.07.
No such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee or any Securityholder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or any Securityholder, then
and in every such case the Company, the Trustee and such Securityholders,
subject to any determination in such proceeding, shall be restored respectively
to their several positions and rights under this Indenture, and all rights,
remedies and powers of the Company, the Trustee and such Securityholders shall
continue as though no such proceeding had been taken.
Section 4.02. Payment of Securities on Default; Suit Therefor.
(a) In case default shall be made in the payment of (i) any installment of
interest upon any of the Securities as and when the same shall become due and
payable, and such default shall have continued for a period of 30 days, or (ii)
the principal of or any premium on any of the Securities as and when the same
shall have become due and payable whether at Maturity of the Securities, by
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Securities, the whole
amount that then shall have become due and payable on all such Securities for
principal, premium or interest, or any combination thereof, as the case may be,
with interest upon the overdue principal and premium and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest, at the rate borne by the Securities; and, in addition,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents, attorneys and counsel.
(b) In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the
Securities and coupons and collect in the manner provided by law out of the
property of the Company or any other obligor on the Securities and coupons,
wherever situated, the money adjudged or decreed to be payable.
(c) In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Securities and
coupons under Title 11 of the United States Code or any other applicable law, or
in case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings
-23-
<PAGE>
relative to the Company or other obligor on the Securities and coupons, or to
the creditors or property of the Company or such other obliger, the Trustee,
irrespective of whether the principal of the Securities shall then be due and
payable as expressed in the Securities or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 4.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and any premium and interest owing and
unpaid in respect of the Securities, and, in case of any judicial proceedings,
(i) to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Securityholders allowed in such
judicial proceedings relative to the Company or any other obligor on the
Securities and coupons, its or their creditors, or its or their property, and
(ii) to collect and receive any money or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of its
charges and expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Securityholders 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 Securityholders, to pay to the Trustee
any amount due it for reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel and any other amounts due
the Trustee under Section 5.06. To the extent that such payment of reasonable
compensation, expenses and counsel fees out of the trust estate in any such
proceedings shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other property which the holders of the Securities and
coupons may be entitled to receive in such proceedings, whether in liquidation
or under any plan of reorganization or arrangement or otherwise.
(d) Nothing contained in this Section 4.02 shall be deemed to authorize the
Trustee to authorize or consent to or adopt on behalf of any Securityholder any
plan of reorganization or arrangement affecting the Securities or related
coupons or the rights of any Securityholder, or to authorize the Trustee to vote
in respect of the claim of any Securityholder in any such proceeding.
(e) All rights of action and of asserting claims under this Indenture, or
under any of the Securities or related coupons, may be enforced by the Trustee
without the possession of any of the Securities or coupons, or the production
thereof in any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, shall be for the ratable benefit of the
holders of the Securities and related coupons.
Section 4.03. Application of Money Collected By Trustee. Any money
collected by the Trustee with respect to any series of Securities or related
coupons pursuant to Section 4.02 shall be applied in the order following, at the
date or dates fixed by the Trustee for the distribution of such money, upon
presentation of the several Securities of such series or coupons, or both, as
the case may be, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts then due the Trustee under
Section 5.06;
SECOND: In case the principal of the Outstanding Securities of that
series shall not have become due and be unpaid, to the payment of interest
on the Securities of that series in the order of the Maturity of the
installments of such interest, with interest (to the extent enforceable
under applicable law) upon the overdue installments of interest at the rate
borne by the Securities of that series, such payments to be made ratably to
the persons entitled thereto; and
-24-
<PAGE>
THIRD: In case the principal of the Outstanding Securities of that
series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of that
series for principal and any premium and interest, with interest on the
overdue principal and any premium and (to the extent enforceable under
applicable law) upon overdue installments of interest at the rate borne by
the Securities of that series; and in case such money shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Securities of
that series, then to the payment of such principal and any premium and
interest without preference or priority of principal over interest, or of
interest over principal, or of any premium over principal or interest, or
of principal or interest over any premium or of any installment of interest
over any other installment of interest, or of any Security of that series
over any other Security of that series, or of any coupon related to a
Security of a series over any other coupon related to a Security of the
same series, ratably to the aggregate of such principal and any premium and
accrued and unpaid interest.
Section 4.04. Proceedings by Securityholders. No holder of any Security
of any series or any related coupon shall have any right to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy under this Indenture, unless such holder previously shall have given to
the Trustee written notice of default and of the continuance thereof, as
provided in Section 4.01, and unless also (i) the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee under this Indenture and shall have
offered to the Trustee such reasonable indemnity as the Trustee may require
against the costs, expenses and liabilities to be incurred in compliance with
such request, (ii) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding and (iii) no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the
holders of a majority in principal amount of the Outstanding Securities of that
series; it being understood and intended, and being expressly covenanted by each
Person who acquires and holds a Security or related coupon with every other such
Person, that no one or more holders of Securities of any series shall have any
right in any manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other holder of
such Securities or coupons, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner provided in this Section 4.04 and for the equal,
ratable and common benefit of all holders of Securities and coupons of such
series.
Notwithstanding any other provision of this Indenture, however, the right
of any holder of any Security to receive payment of the principal of and any
premium and interest on such Security on or after the respective Stated
Maturities, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company, shall not be impaired or
affected without the consent of such holder.
Section 4.05. Proceedings by Trustee. In case of an Event of Default
under this Indenture, the Trustee in its discretion may proceed to protect and
enforce its rights and the rights of the Securityholders by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other proper remedy or
legal or equitable right vested in the Trustee by this Indenture or by law.
-25-
<PAGE>
Section 4.06. Remedies Cumulative and Continuing; Delay or Omission Not
Waiver. All rights, powers and remedies conferred upon or reserved to the
Trustee or to the Securityholders, to the extent permitted by law, shall be
deemed cumulative and not exclusive of any thereof or of any other rights,
powers and remedies available to the Trustee or the holders of the Securities
and related coupons, now or hereafter existing, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture; and no delay or omission of the Trustee
or of any holder of any of the Securities or related coupons to exercise any
such right, power or remedy shall impair any such right, power or remedy, or
shall be construed to be a waiver of any default or an acquiescence in such
default; and subject to the provisions of Section 4.04, every power and remedy
conferred upon or reserved to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders. The assertion of any right, power or remedy
shall not prevent the concurrent assertion of any other right, power or remedy.
Section 4.07. Direction of Proceedings and Waiver of Defaults by Majority
of Securityholders.
(a) The holders of a majority in aggregate principal amount of the
Securities of all series affected (voting as one class) at the time Outstanding
determined in accordance with Section 6.04 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;
provided, however, that (i) such direction may not be in conflict with law or
this Indenture or expose the Trustee to personal liability or be unduly
prejudicial to the holders of the Securities and related coupons not joining in
the direction, and (ii) the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with this Indenture and such direction.
(b) Prior to any declaration that the principal of the Outstanding
Securities of any series is due and payable, the holders of a majority in
aggregate principal amount of the Securities of that series at the time
Outstanding on behalf of the holders of all of the Securities of that series may
waive any past default or Event of Default under this Indenture and its
consequences except a default under a covenant in this Indenture that, pursuant
to Section 8.02, cannot be modified without the consent of each holder of a
Security of the series affected thereby. Upon any such waiver the Company, the
Trustee and the holders of the Securities of that series and the related coupons
shall be restored to their former positions and rights under this Indenture,
respectively; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default under this Indenture shall have been waived as permitted by
this Section 4.07, such default or Event of Default, for all purposes of the
Securities, the related coupons and this Indenture, shall be deemed to have been
cured and to be not continuing.
Section 4.08. Notice of Defaults. The Trustee, within 90 days after the
occurrence of a default with respect to Securities of any series, shall mail to
all Securityholders of that series, at their addresses shown on the Security
Register, notice of all such defaults known to the Trustee, unless such defaults
shall have been cured or waived before the giving of such notice (the term
"defaults" for the purpose of this Section 4.08 being hereby defined to mean the
events which constitute or after notice or lapse of time or both would
constitute an Event of Default); and provided that, except in the case of
default in the payment of the principal of or any premium or interest on any of
the Securities of that series or in the making of any sinking fund payment or
analogous obligation with respect to Securities of that 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 Securityholders of that
series.
-26-
<PAGE>
Section 4.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Security or coupon by his acceptance thereof shall
be deemed to have agreed, that any court in its discretion may 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 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 in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided, however, that the provisions of this Section 4.09
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of that series, or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of or any premium or interest on any Security on or after the
respective Stated Maturities (or, in the case of redemption or repayment, on or
after the redemption date or repayment date).
ARTICLE FIVE
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of Trustee. In case an Event of
Default has occurred (which has not been cured or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provisions of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
its own willful misconduct or any action or failure to act taken or omitted by
it in bad faith, except that:
(a) except during the continuance of an Event of Default:
(1) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but, in the case of any such certificates or opinions that
by any provisions of this Indenture are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the Securities of any
series at the time Outstanding (determined as provided in Section 6.04)
-27-
<PAGE>
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not 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 5.01.
The provisions of this Section 5.01 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act.
Section 5.02. Reliance on Documents, Opinions, etc. Subject to the
applicable provisions of the Trust Indenture Act and in furtherance thereof and
subject to the provisions of Section 5.01:
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture 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, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken
or omitted by it under this Indenture in good faith and in accordance with such
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(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, consent, order, approval, bond, debenture,
coupon 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 and records of the
Company to the extent reasonably necessary to verify such facts or matters; and
-28-
<PAGE>
(g) the Trustee may execute any of the trusts or powers under this
Indenture or perform any duties under this Indenture 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 by it
with due care under this Indenture.
Section 5.03. No Responsibility for Recitals, etc. The recitals contained
in this Indenture and in the Securities (except in the Trustee's certificate of
authentication) and in any coupons shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities or the coupons. The Trustee shall not be
accountable for the use or application by the Company of any Securities or the
proceeds of any Securities authenticated and delivered by the Trustee.
Section 5.04. Trustee, Paying Agents or Registrar May Own Securities.
Subject to the applicable provisions of the Trust Indenture Act, the Trustee or
any Paying Agent or Security registrar, in its individual or any other capacity,
may become the owner or pledgee of Securities with the same rights it would have
if it were not Trustee, Paying Agent or Security registrar.
Section 5.05. Money to be Held in Trust. Subject to the provisions of
Sections 13.03 and 13.04, all money received by the Trustee, until used or
applied as herein provided, shall be held in trust for the purposes for which it
was received. Money held by the Trustee need not be segregated from other funds
except as provided by law. The Trustee shall be under no liability for interest
on any money received by it under this Indenture, provided that the Trustee pays
to the Persons entitled thereto all such money when due and payable.
Section 5.06. Compensation and Expenses of Trustee. The Company will pay
to the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation for all services rendered by it under this Indenture
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its counsel and of all persons
not regularly in its employ) except any such expense, disbursement or advance as
may be attributable to its negligence, bad faith or willful misconduct. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith
or willful misconduct on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim of liability
in connection with the exercise or performance of any of its powers under this
Indenture. The obligations of the Company under this Section 5.06 shall
constitute additional indebtedness under this Indenture.
Section 5.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 5.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action under this
Indenture, such matter (unless other evidence in respect thereof be herein
specifically prescribed), in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, may be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Trustee, and such
Officers' Certificate, in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, shall be full warrant to the Trustee for
any action taken or omitted by it under the provisions of this Indenture upon
the faith of such Officers' Certificate.
-29-
<PAGE>
Section 5.08. Eligibility of Trustee. The Trustee under this Indenture
shall at all times be a corporation organized and doing business under the laws
of the United States or any State thereof or of the District of Columbia (or a
corporation or other person permitted to act as Trustee by the Commission)
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, State or District of Columbia 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 5.08 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. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 5.08, the Trustee shall resign immediately in the manner and with the
effect specified in Section 5.09. Neither the Company nor any person directly
or indirectly controlling, controlled by, or under common control with the
Company shall serve as Trustee under this Indenture.
Section 5.09. Resignation or Removal of Trustee.
(a) The Trustee may resign at any time by giving written notice of such
resignation to the Company, by mailing notice of such resignation to the holders
of Registered Securities at their addresses as they shall appear on the Security
Register and, if any Bearer Securities are Outstanding, by publishing notice of
such resignation in a newspaper of general circulation, in each place of payment
for such Bearer Securities, customarily published at least once a day for at
least five days in each calendar week.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act after written request therefor by the
Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.08 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed or a public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove the Trustee by written
instrument, executed by Company Order authorized by the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee (with written notice of such removal mailed to the
holders of Registered Securities at their address as they shall appear on the
Security Register), or, subject to the provisions of Section 4.09, any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(c) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company
promptly shall appoint a successor Trustee by a Company Order authorized by the
Board of Directors, one copy of which instrument shall be delivered to the
retiring Trustee and one copy to the successor Trustee. If, within one year
after such
-30-
<PAGE>
resignation, removal or incapability or the occurrence of such vacancy, a
successor Trustee shall be appointed by the holders of a majority in principal
amount of the Securities (voting as a single class) at the time Outstanding by
instrument or instruments delivered to the Company and the retiring Trustee, the
successor Trustee so appointed, forthwith upon its acceptance of such
appointment, shall become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Securityholders and accepted appointment in the
manner provided in Section 5.10 within 60 days after notice of the resignation
or removal of the Trustee is mailed to the Securityholders, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months, subject to the provisions of
Section 4.09, on behalf of himself and all others similarly situated, may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(d) The holders of a majority in aggregate principal amount of the
Securities (voting as a single class) at the time Outstanding at any time may
remove the Trustee.
(e) Any removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 5.09 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.10. Any resignation of the Trustee shall become effective only upon the
appointment of a successor Trustee and upon the acceptance of appointment by the
successor Trustee as provided in Section 5.10.
Section 5.10. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 5.09 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment under this Indenture, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor under this Indenture,
with like effect as if originally named as Trustee in this Indenture; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act, upon payment of any amounts then due it pursuant to
the provisions of Section 5.06, shall execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act and shall transfer, assign and deliver to such successor all
property and money held by such predecessor Trustee under this Indenture. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act,
nevertheless shall retain a lien upon all property or funds held or collected by
such Trustee to secure any amounts then due it pursuant to the provisions of
Section 5.06.
No successor Trustee shall accept appointment as provided in this Section
5.10 unless at the time of such acceptance such successor Trustee shall be
qualified under the provisions of Section 310(a) of the Trust Indenture Act and
eligible under the provisions of Section 5.08.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 5.10, the Company shall mail notice of the succession of such Trustee
under this Indenture to the holders of Registered Securities at their addresses
as they shall appear on the Security Register. If the Company fails to mail
such notice within ten days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Company.
Section 5.11. Succession by Merger, etc. 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,
-31-
<PAGE>
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all corporate trust business of
the Trustee, shall be the successor Trustee under this Indenture without the
execution or filing of any paper or any further act on the part of any of the
parties to this Indenture provided such corporation shall be qualified under the
provisions of Section 310(a) of the Trust Indenture Act and eligible under the
provisions of Section 5.08.
In case at the time such successor Trustee shall succeed to the trusts
created by this Indenture any of the Securities shall have been authenticated
but not delivered, any such successor Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor Trustee may authenticate such Securities
either in the name of any predecessor Trustee under this Indenture or in the
name of the successor Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
Section 6.01. Action by Securityholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage have joined in such action may
be evidenced (i) by any instrument or any number of instruments of similar tenor
executed by Securityholders in person or by agent or proxy appointed in writing,
(ii) by the record of the holders of Securities voting in favor of such action
at any meeting of Securityholders duly called and held in accordance with the
provisions of this Article Six or (iii) by a combination of such instrument or
instruments and any such record of such a meeting of Securityholders. The
Company may set a record date for purposes of determining the identity of
holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture, which record date shall be the later of ten
days prior to the first solicitation of such consent or the date of the most
recent list of holders furnished prior to such solicitation pursuant to the
provisions of Section 312(a) of the Trust Indenture Act. If a record date is
fixed, those persons who were holders of Securities at such record date (or
their duly designated proxies), and only those persons, shall be entitled to
take such action by vote or consent or to revoke any vote or consent previously
given, whether or not such persons continue to be holders after such record
date. No such vote or consent shall be valid or effective if such vote occurs
or such consent is obtained more than 120 days after such record date.
Section 6.02. Proof of Execution by Securityholders.
(a) Subject to the provisions of Sections 5.01, 5.02 and 7.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
(b) The ownership of Registered Securities of any series shall be proved by
the Security Register of such Securities or by a certificate of the Security
registrar of such series.
-32-
<PAGE>
(c) 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 (i) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, (ii) such Bearer Security is produced to the
Trustee by some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security is no longer
Outstanding. 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 6.02(c).
(d) The record of any Securityholders' meeting shall be proved in the
manner provided in Section 7.07.
Section 6.03. Who Are Deemed Absolute Owners. Prior to due presentation
of a Registered Security for registration of transfer, the Company, the Trustee,
any Paying Agent and any Security registrar may treat the Person in whose name
such Registered Security is registered as owner of such Registered Security for
the purpose of receiving payment of principal of and any premium and (subject to
Section 2.09) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security is overdue and
notwithstanding any notation of ownership or other writing on such Registered
Security made by anyone other than the Company or any Security registrar, and
neither the Company, the Trustee, any Paying Agent nor any Security registrar
shall be affected by any notice to the contrary. All such payments so made to
any such holder as shown in the Security Register, or upon his order, shall be
valid and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for money payable upon any such Registered Security.
The Company, the Trustee, any Paying Agent and any Security registrar 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 is overdue, and neither the
Company, the Trustee, any Paying Agent nor any Security registrar shall be
affected by any notice to the contrary. All such payments so made to any such
bearer shall be valid and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for money payable upon any such Bearer
Security.
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 6.04. Company Owned Securities Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any direction, consent, waiver or other action under this
Indenture, Securities that are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or
-33-
<PAGE>
indirect common control with the Company or any other obligor on the Securities
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination; provided, however, that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
consent, waiver or other action, only Securities that the Trustee knows are so
owned shall be so disregarded.
Section 6.05. Revocation of Consents; Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
6.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities of any or all series specified in this
Indenture in connection with such action, any holder of a Security the serial
number of which is shown by the evidence to be included in the Securities the
holders of which have consented to such action, by filing written notice with
the Trustee at the principal office of the Trustee and upon proof of holding as
provided in Section 6.02, may revoke such action so far as concerns such
Security. Except as provided in this Section 6.05 any such action taken by the
holder of any Security shall be conclusive and binding upon such holder and upon
all future holders and owners of such Security, irrespective of whether or not
any notation in regard thereto is made upon such Security or any Security issued
in exchange or substitution for such Security.
ARTICLE SEVEN
SECURITYHOLDERS' MEETINGS
Section 7.01. Purposes of Meetings. A meeting of Securityholders of any
or all series may be called at any time and from time to time pursuant to the
provisions of this Article Seven for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
under this Indenture and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to any of the provisions
of Article Four;
(2) to remove the Trustee and nominate a successor Trustee pursuant
to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental to this Indenture pursuant to the provisions of Section 8.02;
or
(4) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture or under applicable
law.
Section 7.02. Call of Meetings by Trustee. The Trustee at any time may
call a meeting of Securityholders of any or all series to take any action
specified in Section 7.01, to be held at such time and at such place in The City
of New York for Registered Securities and the City of London, England for Bearer
Securities, as the Trustee shall determine. Notice of every meeting of the
Securityholders, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed to
holders, if any, of Registered Securities of each series affected at their
addresses as they shall appear on the Security Register, and shall be provided
to holders, if any, of Bearer Securities of each series affected by publication
thereof in a newspaper of general circulation, in each Place of Payment for each
such series, customarily published at least once a day for at least five days in
-34-
<PAGE>
each calendar week. Such notice to holders of Registered Securities shall be
mailed not less than 20 nor more than 90 days prior to the date fixed for the
meeting. Such notice to holders of Bearer Securities shall be made by the
required publication on at least two dates, the first such publication to be not
more than 90 days and the second such publication to be not less than 20 days
prior to the date fixed for the meeting.
Any meeting of Securityholders shall be valid without notice if the holders
of all Securities then Outstanding of each series affected are present in person
or by proxy or if notice is waived before or after the meeting by the holders of
all Outstanding Securities of each series affected, and if the Company and the
Trustee are either present by duly authorized representatives or, before or
after the meeting, have waived notice.
Section 7.03. Call of Meetings by Company or Securityholders. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Securities then
Outstanding of any or all series, as the case may be, that may be affected by
the action proposed to be taken, shall have requested the Trustee to call a
meeting of Securityholders of any or all series, as the case may be, that may be
so affected, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed or
published (as appropriate under Section 7.02) the notice of such meeting within
20 days after receipt of such request, then the Company or such Securityholders
may determine the time and the place in the city designated in Section 7.02, as
the case may be, for such meeting and may call such meeting to take any action
authorized in Section 7.01, by mailing or publishing notice of such meeting as
provided in Section 7.02.
Section 7.04. Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders of any series a person shall (i) be a holder of one
or more Securities of such series as set forth in the Security Register for such
series or (ii) be a person appointed by an instrument in writing as proxy by a
holder of one or more Securities of such series, subject to the provisions of
Section 6.02. The only persons who shall be entitled to be present or to speak
at any meeting of Securityholders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 7.05. Regulations.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities 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 think fit.
(b) The Trustee, by an instrument in writing, shall appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 7.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, in like
manner shall appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
(c) Subject to the provisions of Section 6.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities.
-35-
<PAGE>
(d) No vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Securities held by him or instruments in writing duly
designating him as the person to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions of Section
7.02 or 7.03 may be adjourned from time to time by a majority of those present
and the meeting may be held as so adjourned without further notice.
Section 7.06. Quorum. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities affected by the action proposed
to be taken shall constitute a quorum for a meeting of such Securityholders. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting, if convened at the request of holders of Securities, shall
be dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than ten days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than ten days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 7.02,
except that such notice need be given only once not less than five days prior to
the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities affected
by the action proposed to be taken which shall constitute a quorum.
Section 7.07. Voting. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities or of their
representatives by proxy and the principal amount of the Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any vote by ballot
taken at such meeting 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
such notice was mailed or published as provided in Section 7.02 or 7.03. The
record shall show the principal amount of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters stated in such record.
Section 7.08. No Delay of Rights by Meeting. Nothing in this Article
Seven shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders or any rights expressly or impliedly conferred
under this Article Seven to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders under any of the provisions of this Indenture or of the
Securities.
-36-
<PAGE>
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Securityholders.
The Company, when authorized by the resolutions of the Board of Directors, and
the Trustee from time to time and at any time may enter into an indenture or
indentures supplemental to this Indenture for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumptions by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article Nine;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of any series of
the Securities or coupons as the Board of Directors and the Trustee shall
consider to be for the protection of the holders of such Securities or coupons,
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions or conditions a default or an Event
of Default permitting the enforcement of all or any of the several remedies set
forth in this Indenture; provided, however, that in respect of any such
additional covenant, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained in this Indenture or in any supplemental indenture that may be
defective or inconsistent with any other provision contained in this Indenture
or in any supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture that shall not adversely
affect the interests of the holders of the Securities or any related coupons;
(d) to establish the form or terms of Securities of any series as
permitted by Section 2.01;
(e) 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 any premium on
Registered Securities or of principal or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for Registered
Securities or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely affect the
interests of the holders of Securities of any series or any related coupons;
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture; provided, however,
that such action shall not adversely affect the interests of the holders of the
Securities of any series;
(g) to provide for the documentation necessary for the issuance of
Securities outside the United States of America;
(h) to provide for the documentation necessary for the issuance of
Securities at an issue price lower than the principal amount thereof, including
to provide that upon the redemption or acceleration
-37-
<PAGE>
of the Maturity thereof an amount less than the principal amount thereof shall
become due and payable and that such amount shall be used to determine the
relative voting rights of the holders thereof; or
(i) to conform the Indenture to the provisions of the Trust Indenture Act
as then in effect.
The Trustee hereby is authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations that may be contained in such supplemental indenture and to
accept the conveyance, transfer and assignment of any property under such
supplemental indenture, but the Trustee shall not be obligated to, but may in
its discretion, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
8.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time Outstanding, notwithstanding any
provisions of Section 8.02.
Section 8.02. Supplemental Indentures with Consent of Securityholders of a
Series. With the consent (evidenced as provided in Section 6.01) of the holders
of not less than a majority in aggregate principal amount of the Securities at
the time Outstanding of each series affected by such supplemental indenture or
indentures, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee from time to time and at any time may enter into an
indenture or indentures supplemental to this Indenture for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the holders of the
Securities of each such series; provided, however, that without the consent of
the holder of each Security affected thereby no such supplemental indenture
shall: (a) change the Stated Maturity of the principal of or any premium or any
installment of interest on, any Security, or reduce the principal amount of any
Security or any premium or interest on any Security, or reduce the amount of
principal payable upon acceleration of the Maturity of any Original Issue
Discount Security, or change any Place of Payment where, or the coin or currency
in which, any Security or any premium or interest on any Security is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after its Stated Maturity; (b) reduce the percentage in principal amount of
Securities 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 provision of this Indenture or certain defaults under
this Indenture and their consequences provided for in this Indenture; or (c)
modify the provisions of Section 4.01 providing for the rescinding and annulment
of a declaration accelerating the Maturity of the Securities of any series, or
any of the provision of this Section 8.02 or Section 4.07(b), except to increase
any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived.
Upon the request of the Company, accompanied by a copy of the resolutions
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders of such
series as aforesaid, the Trustee shall join with the Company in the execution of
such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 8.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
-38-
<PAGE>
Section 8.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Eight shall comply with the Trust Indenture Act as then in effect.
Upon the execution of any supplemental indenture pursuant to the provisions of
this Article Eight, this Indenture shall be and be deemed to be modified and
amended in accordance with such supplemental indenture and the respective
rights, limitation of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of the series of
Securities affected thereafter shall be determined, exercised and enforced under
this Indenture subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
Section 8.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eight may bear a notation in form acceptable to the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series and any related coupons
so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange, as provided in Section 2.06, for the Outstanding
Securities of such series and any related coupons, upon surrender of such
Outstanding Securities of such series and any related coupons.
Section 8.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 5.01 and
5.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article Eight complies with the requirements of this Article Eight.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 9.01. Company May Consolidate, etc., 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, 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 State thereof or the District of Columbia
and expressly shall assume, by a supplemental indenture executed and
delivered to the Trustee in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on the
Securities, according to their terms, and the performance of every covenant
of this Indenture and in such series 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; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease
-39-
<PAGE>
and supplemental indenture comply with this Article Nine and that all
conditions precedent provided for in this Indenture relating to such
transaction have been complied with.
Section 9.02. Successor Corporation Substituted. Upon any consolidation by
the Company with or merger by the Company 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 9.01, 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 corporation had been
named as the Company in this Indenture, and thereafter, except in the case of a
lease, the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities of each series and any related
coupons.
Such successor corporation may cause to be signed, and may issue either in
its own name or in the name of the Company prior to such succession, any of or
all of the Securities of each series issuable under this Indenture which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of upon the
Company Order, and subject to all the terms, conditions and limitations in this
Indenture, the Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee on
its behalf for that purpose. All the Securities so issued shall have in all
respects the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all such Securities had been issued at the date of the execution of
this Indenture.
ARTICLE TEN
REDEMPTION OF SECURITIES
Section 10.01. Applicability of Article. Securities of any series that are
redeemable before their Stated Maturity shall be redeemable only in accordance
with their terms and (except as otherwise specified as contemplated by Section
2.01 for Securities of any series) in accordance with this Article Ten.
Section 10.02. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Company Order. In case
of any redemption at the election of the Company of less than all the Securities
of any series, the Company, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
shall notify the Trustee of such Redemption Date, of the tenor and terms of the
Securities of such series to be redeemed and of the principal amount of such
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 10.03. Selection by Trustee of Securities to be Redeemed. If less
than all the Securities of any series of like tenor and terms specified by the
Company are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and of such 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 denominations for such
-40-
<PAGE>
Securities or any integral multiple thereof) of the principal amount of such
Registered Securities or such Bearer Securities or a denomination larger than
the minimum authorized denomination for such Registered Securities or such
Bearer Securities.
The Trustee promptly shall notify the Company in writing of the Securities
selected for redemption and, in the case of any 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 Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 10.04. Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 7.02 not less than 30 nor more than 60 days prior
to the Redemption Date. All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after such date;
(5) the Place or Places of Payment where such 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 that are outside the United States, except as provided
in Section 3.02; and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of 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.
Section 10.05. 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, segregate and hold in trust as
provided in Section 3.04(b)) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be the same date as the
Stated Maturity of an installment of interest thereon) accrued interest on, all
the Securities that 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 3.02, unless otherwise specified as contemplated by Section 2.01.
-41-
<PAGE>
Section 10.06. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall become
due and payable, on the Redemption Date, 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 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 Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that:
(i) 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 3.02); and (ii)
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant record date for the payment of such interest according to the terms of
such Securities.
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 is
furnished to them such security or indemnity as they may require to hold 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 on
account of such coupon 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 3.02.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or related coupon.
Section 10.07. Registered Securities Redeemed in Part. Any Registered
Security that is to be redeemed only in part shall be surrendered at a Place of
Payment therefor (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 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 Security without service
charge, a new Registered Security or new Registered Securities of the same
series and of like tenor and terms, of any authorized denomination as requested
by such holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE ELEVEN
SINKING FUNDS
Section 11.01. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
-42-
<PAGE>
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 11.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of the Securities of
such series.
Section 11.02. Satisfaction of Sinking Fund Payments with Securities. If
provided for by the terms of Securities of any series, the Company
(1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and
(2) may apply as a credit Securities of a series that have been
repurchased at the option of a holder or redeemed either at the election of
the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the
terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund, and the amount of such sinking fund payment shall be reduced accordingly.
Section 11.03. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment of that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivery and crediting Securities of that series pursuant to Section 11.02 and
also will deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 10.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.06 and 10.07.
ARTICLE TWELVE
REPAYMENT AT THE OPTION OF HOLDERS
Section 12.01. Terms Set Forth in the Securities. Securities of any series
which are repayable at the option of the holders thereof before their Stated
Maturity shall be repaid in accordance with the terms set forth in such
Securities.
-43-
<PAGE>
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Securities of any series and any
related coupons theretofore authenticated (other than any Securities of such
series and any related coupons that shall have been mutilated, destroyed, lost
or stolen and in lieu of or in substitution for which other Securities or
coupons shall have been authenticated and delivered) and not theretofore
cancelled, or (b) all the Securities of any series and any related coupons not
theretofore cancelled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, funds (which thereupon shall
become immediately due and payable to the holders of Securities or coupons)
sufficient to pay upon Stated Maturity, redemption or repayment at the option of
a holder all the Securities of such series and related coupons (other than any
Securities of such series and related coupons that shall have been mutilated,
destroyed, lost or stolen and that have been replaced or paid as provided in
Section 2.06) not theretofore cancelled or delivered to the Trustee for
cancellation, including principal and any premium and interest due or to become
due prior to such Stated Maturity, Redemption Date or date of repayment, as the
case may be, but excluding, however, the amount of any money for the payment of
principal of or any premium or interest on the Securities
(1) theretofore deposited with the Trustee and repaid by the Trustee
to the Company in accordance with the provisions of Section 13.04, or
(2) paid to any State or the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the Company also
shall pay or cause to be paid all other sums payable under this Indenture
by the Company
then this Indenture shall cease to be of further effect with respect to
Securities of such series and any related coupons, and the Trustee, on demand of
the Company accompanied by an Officer's Certificate and an Opinion of Counsel
as required by Section 15.05 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to Securities of such series and any related coupons.
The obligations of the Company to the Trustee under Section 5.06 shall survive
the termination of this Indenture.
The Trustee shall notify the Securityholders of such series, at the expense
of the Company, of the immediate availability of the amount referred to in
clause (b) of this Section 13.01 by mailing a notice, first class postage
prepaid, to the holders of Securities of such series at their addresses as they
appear on the Security Register.
Section 13.02. Deposited Money to be Held in Trust by Trustee. Subject to
Section 13.04, all money deposited with the Trustee pursuant to Section 13.01
shall be held in trust and applied by it to the payment, either directly or
through any Paying Agent (including the Company if acting as its own Paying
Agent, other than as to Bearer Securities, except as provided in Section 3.02),
to the holders of the particular Securities and related coupons for the payment
of which such money has been deposited with the Trustee, of all sums due and to
become due thereon for principal and any premium and interest.
Section 13.03. Paying Agent to Repay Money Held. Upon the satisfaction
and discharge of this Indenture all money then held by any Paying Agent of the
Securities (other than the Trustee), upon
-44-
<PAGE>
demand of the Company, shall be repaid to it or paid to the Trustee, and
thereupon such Paying Agent shall be released from all further liability with
respect to such money.
Section 13.04. Return of Unclaimed Money. Any money deposited with or
paid to the Trustee or any Paying Agent for payment of the principal of or any
premium or interest on Securities of any series, or then held by the Company in
trust for the payment of the principal of or any premium or interest on
Securities of any series, and not applied but remaining unclaimed by the holders
of Securities of that series for two years after the date upon which the
principal or any premium or interest on such Securities, as the case may be,
shall have become due and payable, shall be repaid to the Company by the Trustee
on demand or, if then held by the Company, shall be discharged from such trust,
and all liability of the Trustee thereupon shall cease; and the holder of any of
such Securities thereafter, as an unsecured general creditor, shall look only to
the Company for payment of such Securities, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, thereupon shall cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
at the expense of the Company, in the case of Registered Securities or Bearer
Securities, may cause to be published once, in a newspaper of general
circulation in each Place of Payment for such series customarily published on
each Business Day (whether or not published on Saturdays, Sundays or holidays)
or, in the case of Registered Securities, mail to each such holder, or both in
the case of Registered Securities, notice that such money remains unclaimed and
that, after a date specified in such notice, 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 13.05. Discharge of Indenture as to Certain Series of Securities.
(a) If this Section 13.05 is specified in the manner contemplated by
Section 2.01 to be applicable to the Securities of any series, the Company shall
be deemed to have paid and discharged the entire indebtedness on all the
Securities of any such series at the time Outstanding and, upon Company Order,
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction, discharge and defeasance of such indebtedness, when:
(1) either:
(A) with respect to all Securities of such series at the time
Outstanding, the Company shall have deposited or caused to be
deposited irrevocably with the Trustee for such series as trust funds
in trust, U.S. dollars, U.S. Government Obligations or a combination
thereof, in an amount that through the payment of interest and
principal and premium in respect thereof in accordance with their
terms will provide (without any reinvestment of such interest or
principal), not later than one Business Day before the due date of any
payment in respect of the Securities for such series, money in an
amount sufficient (in the case of a deposit including any U.S.
Government Obligations, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee at or prior to the time of such
deposit) to pay and discharge each installment of principal of
(including any mandatory sinking fund payments), and any premium and
interest on, the Outstanding Securities of such series on the dates
such installments of principal and any premium and interest are due or
upon the Stated Maturity, Redemption Date or repayment at the option
of a holder of such series, as applicable; or
-45-
<PAGE>
(B) the Company properly has fulfilled such other means of
satisfaction and discharge as is specified, in the manner contemplated
by Section 2.01, to be applicable to the Securities of such series;
(2) no Event of Default or event (including such deposit) which, with
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit as evidenced to the Trustee in an
Officers' Certificate delivered concurrently with such deposit to the
Trustee;
(3) the Company shall have paid or caused to be paid all other sums
payable with respect to the Securities of such series at the time
Outstanding;
(4) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound, or the
Company has obtained a waiver of any such breach, violation or default;
(5) unless otherwise specified in the manner contemplated by Section
2.01, the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of the Company's exercise of its option under this Section 13.05 and will
be subject to Federal income tax on the same amount and in the manner and
at the same times as would have been the case if such option had not been
exercised and, in the case of the Securities of such series being
discharged, accompanied by a ruling to that effect received from or
published by the Internal Revenue Service; and
(6) the Company shall have 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, discharge and
defeasance of the entire indebtedness on all Securities of any such series
at the time Outstanding have been complied with.
(b) "U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America 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
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof.
(c) Upon the satisfaction of the conditions set forth in this Section 13.05
with respect to all the Securities of any series at the time Outstanding, 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 (except as to any surviving rights of conversion or
registration of transfer or exchange and rights relating to mutilated,
destroyed, lost and stolen Securities pursuant to Section 2.07 of Securities of
such series expressly provided for herein or in the form of Security of such
series); provided, however, that the Company shall not be discharged from any
payment obligations in respect of Securities of such series which are deemed not
to be Outstanding under clause (c) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law.
Section 13.06. Repayment to Company of Deposits Made Pursuant to Section
13.05. After the payment in full of the entire indebtedness of a series of
Securities with respect to which a deposit has
-46-
<PAGE>
been made with the Trustee pursuant to Section 13.05, the Trustee and any Paying
Agent for such series upon Company Order promptly shall return to the Company
any money or U.S. Government Obligations held by them that are not required for
the payment of the principal of and any premium and interest on the Securities
of such series.
Section 13.07. Deposits Irrevocable. Any deposits with the Trustee
referred to in Sections 13.01 and 13.05(a)(1)(A) shall be irrevocable. If any
Securities of a series with respect to which a deposit has been made pursuant to
Sections 13.01 and 13.05(a)(1)(A) at the time Outstanding 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
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.
Section 13.08. Reinstatement. If the Trustee is unable to apply any money
or U.S. Government Obligations in accordance with Section 13.01 or 13.05 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 13.01 or 13.05 until such time as the Trustee is permitted
to apply all such money or U.S. Government Obligations in accordance with
Section 13.01 or 13.05.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or any premium or interest on any
Security, or for any claim based on any Security or coupon or otherwise in
respect of any Security or coupon, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any Security, or
because of the creation of any indebtedness represented by any Security or
coupon, shall be had against any incorporator, stockholder, officer or director,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities and coupons.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 15.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements contained in this Indenture by
the Company shall bind its successors and assigns whether so expressed or not.
Section 15.02. Official Acts by Successor Corporation. Any act or
proceeding by any provisions of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board,
-47-
<PAGE>
committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.
Section 15.03. Addresses for Notices, etc. Any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Securities on the Company may be given or
served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) to Mercantile Bancorporation Inc., Attention: Treasurer, P.O.
Box 524, St. Louis, Missouri 63166-0524, with a copy to it at P.O. Box 524, St.
Louis, Missouri 63166-0524, Attention: General Counsel. Any notice, direction,
request or demand by any Securityholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing at the principal office of the Trustee, Attention: Corporate Trust
Administration.
Section 15.04. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 15.05. Evidence of Compliance with Conditions Precedent. Upon any
application or request by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture (other than certificates provided pursuant to Section 3.04,
which certificates shall comply with the requirements of Section 3.04) shall
include: (i) a statement that the person making such certificate or opinion has
read such covenant or condition; (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinion
contained in such certificate or opinion are based; (iii) a statement that, in
the opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
The provisions of this Section 15.05 are in furtherance of and subject to
Sections 314(c)(1), 314(c)(2) and 314(e) of the Trust Indenture Act.
Section 15.06. Legal Holidays. Unless otherwise specified in the manner
contemplated by Section 2.01, in any case where the Stated Maturity of principal
of or any premium or interest on the Securities will not be a Business Day,
payment of such principal, premium or interest need not be made on such date but
may be made on the next following Business Day with the same force and effect as
if made on the Stated Maturity and, if such principal, premium or interest is
duly paid on such next following Business Day, no interest shall accrue for the
period from and after such Stated Maturity to such next following Business Day.
Section 15.07. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any
provision of the Trust Indenture Act, such required provision shall control. If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
-48-
<PAGE>
Section 15.08. No Security Interest Created. Nothing in this Indenture or
in the Securities or coupons, express or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction
where property of the Company or its Subsidiaries is located.
Section 15.09. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any person, other than
the parties to this Indenture, any Paying Agent, any Security registrar and
their successors under this Indenture and the holders of Securities or coupons
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
-49-
<PAGE>
MERCANTILE BANCORPORATION INC.
By:
-----------------------------
[Name]
[Title]
[SEAL]
Attest:
- ----------------------
Title:
--------------------------------
By:
-----------------------------
[Name]
[Title]
[SEAL]
Attest:
- ----------------------
Title:
-50-
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of ___________________, 199_, before me personally came
_____________, to me known, who, being by me duly sworn did depose and say that
he resides at _____________________; that he is the ____________________________
of MERCANTILE BANCORPORATION INC., one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by the authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
-----------------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _______________, 199_, before me personally came
_______________________________, to me known, who, being by me duly sworn did
depose and say that he resides at ____________________________________; that he
is a _________________ of __________________________________________, one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by the authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
-----------------------------------------------
Notary Public
[NOTARIAL SEAL]
-51-
<PAGE>
EXHIBIT 4.2
------------------------------------------
Mercantile Bancorporation Inc.
and
__________________________________,
Trustee
-----------------------------------
Indenture
Regarding Subordinated Securities
Dated as of ____________________, 199_____
------------------------------------------
<PAGE>
Reconciliation and Tie Sheet*
between
Provisions of the Trust Indenture Act of 1939
and
Indenture, dated as of ____________________, 199_____
between
Mercantile Bancorporation Inc.
and
__________________________________, Trustee
<TABLE>
<CAPTION>
Section of Act Section of Indenture
- -------------- --------------------
<S> <C>
310(a)(1), (2)..................... 6.08
310(a)(3), (4)..................... Not applicable
310(a)(5).......................... 6.08
310(b)............................. **
310(c)............................. Not applicable
311(c)............................. Not applicable
312................................ **
313(a)............................. **
313(b)(1).......................... Not applicable
313(b)(2).......................... **
313(c), (d)........................ **
314(a)............................. **
314(b)............................. Not applicable
314(c)(1) and (2).................. 16.05
314(c)(3).......................... Not applicable
314(d)............................. Not applicable
314(e)............................. 16.05
314(f)............................. Not applicable
315(a)(c) and (d).................. 6.01
315(b)............................. 5.08
315(e)............................. 5.09
316(a)(1).......................... 5.01 and 5.07
316(a)(2).......................... Omitted
316(a) last sentence............... 7.04
316(b)............................. 5.04
316(c)............................. 7.05
317(a)............................. 5.02
317(b)............................. 4.04(a)
318(a)............................. 16.07
</TABLE>
- -----------------------------------
* This Reconciliation and Tie Sheet is not a part of the Indenture.
** Included pursuant to Section 318(c) of the Trust Indenture Act of 1939.
<PAGE>
Table of Contents*
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties................................................................................. 1
Recitals................................................................................ 1
ARTICLE I.
DEFINITIONS
Section 1.01. Definitions......................................................... 1
ARTICLE II.
THE SECURITIES AND SECURITY FORMS
Section 2.01. Amount Unlimited; Issuable in Series................................ 6
Section 2.02. Form of Securities and of Trustee's Certificate of Authentication... 8
Section 2.03. Securities in Global Form........................................... 9
Section 2.04. Denomination, Authentication and Dating of Securities............... 9
Section 2.05. Execution of Securities............................................. 12
Section 2.06. Exchange and Registration of Transfer of Securities................. 12
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities..................... 15
Section 2.08. Temporary Securities................................................ 16
Section 2.09. Payment of Interest; Interest Rights................................ 17
Section 2.10. Cancellation of Securities Paid, etc................................ 19
ARTICLE III.
SUBORDINATION OF SECURITIES
Section 3.01. Agreement of Securityholders that Securities Subordinated to Extent
Provided.............................................................19
Section 3.02. Company Not to Make Payments with Respect to Securities in Certain
Circumstances........................................................19
Section 3.03. Securities Subordinated to Prior Payment of All Senior Indebtedness
on Dissolution, Liquidation or Reorganization of Company.............20
Section 3.04. Securityholders to be Subrogated to Rights of Holders of Senior
Indebtedness.........................................................21
Section 3.05. Obligation of the Company Unconditional, etc.........................21
Section 3.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice...............................................................22
Section 3.07. Application by Trustee of Money Deposited with It....................22
Section 3.08. Article Applicable to Paying Agents..................................22
</TABLE>
- --------------------------
* This table of contents is not part of the Indenture.
(i)
<PAGE>
<TABLE>
Page
----
<S> <C> <C>
Section 3.09. Subordination Rights Not Impaired by Acts or Omissions of Company
or Holders of Senior Indebtedness.................................... 22
Section 3.10. Securityholders Authorize Trustee to Effectuate Subordination of
Securities........................................................... 23
Section 3.11. Right of Trustee to Hold Senior Indebtedness......................... 23
Section 3.12. Article III Not to Prevent Events of Default......................... 23
Section 3.13. Trustee Not Fiduciary for Holders of Senior Indebtedness............. 23
ARTICLE IV.
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal and Interest.................................... 23
Section 4.02. Offices for Notices and Payments, etc................................ 23
Section 4.03. Provisions as to Paying Agent........................................ 24
Section 4.04. Statement as to Compliance........................................... 25
Section 4.05. Notice of Certain Defaults........................................... 26
Section 4.06. Corporate Existence.................................................. 26
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT OR ACCELERATION EVENT
Section 5.01. Events of Default.................................................... 26
Section 5.02. Payment of Securities on Default; Suit Therefor...................... 28
Section 5.03. Application of Money Collected by Trustee............................ 29
Section 5.04. Proceedings by Securityholders....................................... 30
Section 5.05. Proceedings by Trustee............................................... 30
Section 5.06. Remedies Cumulative and Continuing; Delay or Omission Not Waiver..... 30
Section 5.07. Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders...................................................... 31
Section 5.08. Notices of Defaults.................................................. 31
Section 5.09. Undertaking to Pay Costs............................................. 31
ARTICLE VI.
CONCERNING THE TRUSTEE
Section 6.01. Duties and Responsibilities of Trustee............................... 32
Section 6.02. Reliance on Documents, Opinions, etc................................. 33
Section 6.03. No Responsibility for Recitals, etc.................................. 34
Section 6.04. Trustee, Paying Agents or Registrar May Own Securities............... 34
Section 6.05. Money to be Held in Trust............................................ 34
Section 6.06. Compensation and Expenses of Trustee................................. 34
Section 6.07. Officers' Certificate as Evidence.................................... 34
Section 6.08. Eligibility of Trustee............................................... 35
</TABLE>
(ii)
<PAGE>
<TABLE>
Page
----
<S> <C> <C>
Section 6.09. Resignation or Removal of Trustee.................................... 35
Section 6.10. Acceptance by Successor Trustee...................................... 36
Section 6.11. Succession by Merger, etc............................................ 37
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
Section 7.01. Action by Securityholders............................................ 37
Section 7.02. Proof of Execution by Securityholders................................ 37
Section 7.03. Who Are Deemed Absolute Owners....................................... 38
Section 7.04. Company Owned Securities Disregarded................................. 39
Section 7.05. Revocation of Consents; Future Holders Bound......................... 39
ARTICLE VIII.
SECURITYHOLDERS' MEETINGS
Section 8.01. Purposes of Meetings................................................. 39
Section 8.02. Call of Meetings by Trustee.......................................... 39
Section 8.03. Call of Meetings by Company or Securityholders....................... 40
Section 8.04. Qualifications for Voting............................................ 40
Section 8.05. Regulations.......................................................... 40
Section 8.06. Quorum............................................................... 41
Section 8.07. Voting............................................................... 41
Section 8.08. No Delay of Rights by Meeting........................................ 41
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Securityholders........... 42
Section 9.02. Supplemental Indentures with Consent of Securityholders of a Series.. 43
Section 9.03. Compliance with Trust Indenture Act: Effect of Supplemental
Indentures........................................................... 44
Section 9.04. Notation on Securities............................................... 44
Section 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished
Trustee.............................................................. 44
ARTICLE X.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 10.01. Company May Consolidate, etc., on Certain Terms...................... 44
Section 10.02. Successor Corporation Substituted.................................... 45
</TABLE>
(iii)
<PAGE>
<TABLE>
Page
----
ARTICLE XI.
REDEMPTION OF SECURITIES
<S> <C> <C>
Section 11.01. Applicability of Article............................................ 45
Section 11.02. Election to Redeem; Notice to Trustee............................... 45
Section 11.03. Selection by Trustee of Securities to be Redeemed................... 46
Section 11.04. Notice of Redemption................................................ 46
Section 11.05. Deposit of Redemption Price......................................... 47
Section 11.06. Securities Payable on Redemption Date............................... 47
Section 11.07. Registered Securities Redeemed in Part.............................. 47
ARTICLE XII.
SINKING FUNDS
Section 12.01. Applicability of Article............................................ 48
Section 12.02. Satisfaction of Sinking Fund Payments with Securities............... 48
Section 12.03. Redemption of Securities for Sinking Fund........................... 48
ARTICLE XIII.
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.01. Terms Set Forth in the Securities................................... 49
ARTICLE XIV.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 14.01. Discharge of Indenture.............................................. 49
Section 14.02. Deposited Money to be Held in Trust by Trustee...................... 50
Section 14.03. Paying Agent to Repay Money Held.................................... 50
Section 14.04. Return of Unclaimed Money........................................... 50
Section 14.05. Deposits Irrevocable................................................ 50
Section 14.06. Reinstatement....................................................... 50
ARTICLE XV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 15.01. Indenture and Securities Solely Corporate Obligations............... 51
</TABLE>
(iv)
<PAGE>
<TABLE>
Page
----
ARTICLE XVI.
MISCELLANEOUS PROVISIONS
<S> <C> <C>
Section 16.01. Provisions Binding on Company's Successors................... 51
Section 16.02. Official Acts by Successor Corporation....................... 51
Section 16.03. Addresses for Notices, etc................................... 51
Section 16.04. Governing Law................................................ 51
Section 16.05. Evidence of Compliance with Conditions Precedent............. 51
Section 16.06. Legal Holidays............................................... 52
Section 16.07. Trust Indenture Act to Control............................... 52
Section 16.08. No Security Interest Created................................. 52
Section 16.09. Benefits of Indenture........................................ 52
Section 16.10. Payments to be Made in U.S. Dollars.......................... 52
Section 16.11. Table of Contents Headings, etc.............................. 52
Section 16.12. Execution in Counterparts.................................... 53
Signatures.......................................................................... 56
Acknowledgements
</TABLE>
(v)
<PAGE>
THIS INDENTURE, dated as of ____________________, 199_____, is entered into
by MERCANTILE BANCORPORATION INC., a Missouri corporation (such corporation or,
subject to Article X, its successors and assigns, the "Company"), and
__________________________________, a _______________, duly organized and
existing under the laws of ____________________________ (such banking
association or, subject to Article VI, its successors and assigns as Trustee
under this Indenture, the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness or warrants
therefor to be issued in one or more series (the "Securities"), as provided
herein.
For and in consideration of the premises and the purchase of the Securities
by the holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all holders of the Securities, as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01 (except
to the extent the application of such definitions is expressly limited to
certain instances, and except as otherwise expressly provided in this Indenture
or unless the context otherwise requires) for all purposes of this Indenture
will have the respective meanings specified in this Section 1.01. Except as
otherwise expressly provided in this Indenture or unless the context otherwise
requires, all other terms used in this Indenture that are defined in the Trust
Indenture Act or that the Trust Indenture Act defines by reference to the
Securities Act of 1933 or by Commission rule under the Trust Indenture Act will
have the meanings assigned to such terms in the Trust Indenture Act, in such
rule thereunder or in such Securities Act as in force at the date of the
execution of this Indenture.
Acceleration Event: The term "Acceleration Event," with respect to
Securities of any Series, means the occurrence with respect to the Company or
any Principal Constituent Bank of any of the events described in Section 5.01 or
5.01, continued for the period of time, if any, and after the giving of notice,
if any, designated in Section 5.01 or 5.01, or shall have the meaning otherwise
specified in the Securities of such series.
Bank: The term "Bank" means (i) any institution, including savings
associations and other United States depository institutions, organized under
the laws of the United States, any State, the District of Columbia, Puerto Rico
or any territory of the United States that (a) accepts deposits that the
depositor has a legal right to withdraw on demand and (b) engages in the
business of making loans and (ii) any trust company organized under any of the
foregoing laws. Unless otherwise provided, for purposes of this Indenture a Bank
also will be considered a "corporation."
Bearer Security: The term "Bearer Security" means any Security established
pursuant to Section 2.02 that is payable to bearer.
Bearer Security Tax Certificate: The term "Bearer Security Tax Certificate"
or "Certificate of non-U.S. Ownership," when used with respect to a Bearer
Security, means a certificate satisfying the
<PAGE>
requirements of Treasury Regulation (S) 1.163-5(c)(2)(i)(D)(3), as that
provision may be amended or redesignated from time to time, which certificate
shall be in a form approved by the Company.
Board of Directors: The term "Board of Directors" means the Board of
Directors of the Company or, with respect to any matter, any committee of the
Board of Directors duly authorized to act for the Board of Directors with
respect to such matter.
Business Day: The term "Business Day," with respect to each series of
Securities, means any day other than a Saturday or Sunday that is neither a
legal holiday nor a day on which banking institutions are authorized or
obligated by law or regulation to close in either the City of New York or
___________________ or, with respect to Registered Notes that will bear interest
based on a specified percentage of London interbank offered quotations
("LIBOR"), in London, England, or, in the case of Bearer Securities, in any
Place of Payment.
CEDEL: The term "CEDEL" means Cedel Bank, societe anonyme.
Commission: The term "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 Indenture
the 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: The term "Company" means the corporation identified as the Company
in the first paragraph of this Indenture until a successor corporation shall
succeed to and be substituted for the Company pursuant to the provisions of
Article X, and thereafter shall mean such successor corporation.
Company Order: The term "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman, its Chief Executive Officer, its President, any Executive Vice
President or any Senior Vice President and its Treasurer, any Assistant
Treasurer, its Secretary or any Assistant Secretary, and delivered to the
Trustee.
Consolidated Net Banking Assets: The term "Consolidated Net Banking Assets"
means all net assets owned directly or indirectly by a Subsidiary that is a Bank
as such net assets would be reflected on a consolidated balance sheet of the
Company prepared in accordance with generally accepted accounting principles at
the time.
Constituent Bank: The term "Constituent Bank" means any Subsidiary that is
a Bank.
Controlled Subsidiary: The term "Controlled Subsidiary" means any
Subsidiary of which more than 80% of the aggregate voting power of the
outstanding shares of the Voting Stock at the time is owned directly or
indirectly by the Company or by one or more Controlled Subsidiaries or by the
Company and one or more Controlled Subsidiaries, after giving effect to the
issuance to any Person other than the Company or any Controlled Subsidiary of
Voting Stock of the Subsidiary issuable on exercise of options, warrants or
rights to subscribe for such Voting Stock or on conversion of securities
convertible into such Voting Stock.
coupon: The term "coupon" means any interest coupon appertaining to a
Bearer Security.
Defaulted Interest: The term "Defaulted Interest" has the meaning specified
in Section 2.09.
2
<PAGE>
Depositary: The term "Depositary," with respect to the Securities of any
series issuable or issued in the form of one or more Global Securities, means
the Depository Trust Company, New York, New York, or such other Person
designated as Depositary by the Company in the manner provided in Section 2.01,
until a successor Depositary shall have been appointed pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" means or
includes each person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series means the Depositary with respect to the
Securities of that series.
Euroclear: The term "Euroclear" means Morgan Guaranty Trust Company of
New York, Brussels Office, as operator of the Euroclear System.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
the notice, if any, designated in Section 5.01.
Global Security: The term "Global Security" means a Security issued to
evidence all or part of a series of Securities in accordance with Section 2.03.
Indenture: The term "Indenture" means this instrument as originally
executed or, if amended or supplemented as provided in this Indenture, as so
amended or supplemented.
interest: The term "interest," when used with respect to an Original Issue
Discount Security that by its terms bears interest only after Maturity, means
interest payable after Maturity.
Interest Payment Date: The term "Interest Payment Date," when used with
respect to any Security, means the Stated Maturity of an installment of interest
on such Security.
Maturity: The term "Maturity," when used with respect to any Security,
means the date on which the principal of such Security becomes due and payable
as therein or herein provided, whether at the Stated Maturity or by the
declaration of acceleration, call for redemption, repayment at the option of the
holder or otherwise.
Officers' Certificate: The term "Officers' Certificate," when used with
respect to the Company, means a certificate signed by the Chairman of the Board,
any Vice Chairman, the Chief Executive Officer, the President, any Executive
Vice President or any Senior Vice President and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Company. Except as
otherwise provided in this Indenture, each such certificate shall include the
statements provided for in Section 16.05.
Opinion of Counsel: The term "Opinion of Counsel" means an opinion in
writing signed by legal counsel, who may be an employee of or counsel to the
Company, and who shall be acceptable to the Trustee. Except as otherwise
provided in this Indenture, each such opinion shall include the statements
provided for in Section 16.05.
Original Issue Discount Security; principal amount or aggregate principal
amount: The term "Original Issue Discount Security" means any Security that
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 5.01. The term "principal amount" or "aggregate principal amount," when
used with respect to Original Issue Discount Securities, has the meaning (or
meanings) specified in the manner contemplated by Section 2.01 for purposes of:
determining the amount due and payable in the event of an acceleration
3
<PAGE>
of Maturity as provided in Section 5.01; the redemption provisions in Article
XI; determining whether the holders of the requisite principal amount of
Outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver under this Indenture; and
determining whether a quorum is present at a meeting of Securityholders.
Paying Agent: The term "Paying Agent," when used with respect to Securities
of any series, means any Person authorized by the Company to pay the principal
of and any premium or interest on any Securities of that series on behalf of the
Company.
Person: The term "Person" means a corporation, an association, a
partnership, an organization, a trust, an individual, a government or a
political subdivision thereof or a governmental agency.
Place of Payment: The term "Place of Payment" has the meaning stated in
Section 2.01(e).
Predecessor Security: The term "Predecessor Security" of any particular
Security means every previous Security evidencing all or a portion of the same
debt that was evidenced by such particular Security, and, for the purposes of
this definition, any Security authenticated and delivered under Section 2.06 in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
Principal Constituent Bank: The term "Principal Constituent Bank" means, at
any time, Mercantile Bank National Association and any other Constituent Bank
the total assets of which (as set forth in the most recent statement of
condition of such Constituent Bank) equal more than 20% of the total assets of
all Constituent Banks as determined from the most recent statements of condition
of the Constituent Banks.
principal office of the Trustee: The term "principal office of the Trustee"
or any other similar term means the principal office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office, at the date of this Indenture, is located at __________________
____________________________, _________________________________.
Redemption Date: The term "Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
Redemption Price: The term "Redemption Price," when used with respect to
any Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
Registered Security: The term "Registered Security" means any Security in
the form of registered securities established pursuant to Section 2.02, that is
registered in the Security Register.
Regular Record Date: The term "Regular Record Date," with respect to the
interest payable on any Interest Payment Date on the Securities of any series,
means the date specified for that purpose as contemplated by Section 2.01.
Responsible Officer: The term "Responsible Officer," when used with respect
to the Trustee, means the Chairman or Vice Chairman of its board of directors,
the Chairman or Vice Chairman of the executive committee of the board of
directors, the President, any Vice President, any senior trust officer, any
trust officer, any assistant trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the
4
<PAGE>
persons who at the time shall be the above-named officers, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
Security or Securities; Outstanding: The term "Security" or "Securities"
has the meaning stated in the recital of this Indenture and means any Security
or Securities, as the case may be, authenticated and delivered pursuant to this
Indenture. Whenever this Indenture refers to any interest on or with respect to
any Security that is represented by a coupon, such reference to the Security
also shall include reference to a coupon.
The term "Outstanding," when used with reference to Securities of any
series or the related coupons, subject to the provisions of Section 7.04, means,
as of any particular time, all Securities of such series or any related coupons
authenticated and delivered by the Trustee pursuant to this Indenture, except:
(a) such Securities and coupons theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(b) such Securities and coupons, or portions thereof, for the payment
or redemption of which money in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent), provided that
if such Securities are to be redeemed prior to the Maturity thereof, notice
of such redemption shall have been provided as specified in Article XI, or
provision satisfactory to the Trustee shall have been made for mailing such
notice; and
(c) Securities or coupons in lieu of or in substitution for which
other Securities or coupons shall have been authenticated and delivered
pursuant to the terms of Section 2.06, except to the extent that a bona
fide holder in due course of any such Securities shall have presented proof
satisfactory to the Trustee that such holder is a bona fide holder in due
course of any such Securities or coupons.
Security Register: The term "Security Register," when used with respect to
a Registered Security, has the meaning specified in Section 2.06(b).
Securityholder: The term "Securityholder," "holder of Securities," "holder"
or other similar term, when used with respect to a Registered Security, means
any Person in whose name at the time a particular Registered Security is
registered on the Security Register and, when used with respect to a Bearer
Security or coupon, the bearer thereof.
Senior Indebtedness: The term "Senior Indebtedness" means the principal of
and any premium and interest on the following, whether Outstanding on the date
of execution of this Indenture or thereafter incurred or created: (a)
indebtedness of the Company for money borrowed by the Company (including
purchase money obligations with an original term of more than one year) or
evidenced by debentures, notes or other corporate debt securities or similar
instruments issued by the Company (other than the Securities); (b) indebtedness
or obligations of the Company as lessee under any lease of real or personal
property required to be capitalized under generally accepted accounting
principles at the time; (c) indebtedness or obligations incurred or assumed by
the Company in connection with the acquisition by the Company or any Subsidiary
of any property, including any business; (d) obligations under any agreement in
respect of any interest rate or currency swap, interest rate cap, floor or
collar, interest rate future, currency exchange or forward currency transaction
that relates to Senior Indebtedness;
5
<PAGE>
(e) indebtedness or obligations of the Company constituting a guarantee of
indebtedness or of obligations of others of the type referred to in the
preceding clauses (a), (b), (c) and (d); or (f) renewals, extensions or
refundings of any of the indebtedness or obligations referred to in the
preceding clauses (a), (b), (c), (d) and (e); provided, however, that Senior
Indebtedness shall not include any particular indebtedness or obligation,
renewal, extension or refunding referred to in clause (a), (b), (c), (d), (e) or
(f) if the express provisions of the instrument creating or evidencing the same,
or pursuant to which the same is outstanding, provide that such indebtedness or
other obligation or such renewal, extension or refunding is not superior in
right of payment to the Securities; provided further, however, the Securities
shall be senior in right of payment to those certain Floating Rate Junior
Subordinated Deferrable Interest Debentures due 2027 of the Company.
Special Record Date: The term "Special Record Date" has the meaning
specified in Section 2.09.
Stated Maturity: The term "Stated Maturity," when used with respect to any
Security or any payment of premium or any installment of interest thereon, means
the date specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
payment of premium or such installment of interest is due and payable.
Subsidiary: The term "Subsidiary" means any corporation of which a majority
of the aggregate voting power of the outstanding Voting Stock at the time shall
be owned by the Company or by the Company and one or more Subsidiaries or by one
or more Subsidiaries.
Trust Indenture Act: The term "Trust Indenture Act" means the Trust
Indenture Act of 1939 as it was in force at the date of execution of this
Indenture, except as provided in Section 9.03; provided, however, that, in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
Trustee: The term "Trustee" means the Person identified as the Trustee in
the first paragraph of this Indenture until a successor shall succeed to the
trusts created by this Indenture pursuant to the provisions of Article VI, and
thereafter shall mean such successor.
United States: The term "United States" means the United States of America
(including the District of Columbia) and its possessions.
Vice President: The term "Vice president" or "Vice President," when used
with respect to the Company or the Trustee, means any such officer whether or
not designated by a number or a word or words added before or after such title.
Voting Stock: The term "Voting Stock" of a corporation or other entity
means stock of the class or classes having general voting power in an election
of the board of directors, managers or trustees of such corporation or other
entity (irrespective of whether, at the time, stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
ARTICLE II.
THE SECURITIES AND SECURITY FORMS
Section 2.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. Securities may be issued in one or more series.
6
<PAGE>
The terms and conditions listed below, as applicable, of any series of
Securities shall be established either in an indenture supplemental hereto or in
or pursuant to a resolution of the Board of Directors:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, other Securities of the
series pursuant to Section 2.05, 2.06, 2.07, 9.04 or 11.07.
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the formula by
which interest shall be calculated by the Company or an agent designated
for such purpose, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Registered Security on
any Interest Payment Date;
(e) the place or places, if any, in addition to those specified
herein, where the principal of and any premium or interest on Securities of
the series shall be payable (the "Place of Payment"), any Registered
Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices and
demands to or upon the Company in respect of the Securities of the series
and this Indenture may be served and where notices to holders pursuant to
this Indenture will be published;
(f) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which, the period or periods within which and the other terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation, which in the
case of Securities of any series that are repayable at the option of a
holder thereof shall be set forth in the form of such Security;
(h) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if
other than the date of original issuance of the first Security of such
series of like tenor and term to be issued;
(i) whether the 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 (if other than the Depository Trust Company) for such Global
Security or Securities and whether such global form shall be permanent or
temporary;
7
<PAGE>
(j) if Securities of the series are to be issuable initially in the
form of one or more temporary Global Securities, the circumstances under
and the manner in which such temporary Global Securities can be exchanged
for definitive Securities of the series and whether such definitive
Securities will be Registered Securities, Bearer Securities or both and
will be in global form;
(k) the denominations in which 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 Bearer Securities of such
series, if any, shall be issuable if other than the denomination of $5,000;
(l) any Event of Default or Acceleration Event with respect to the
Securities of such series, if not set forth herein;
(m) the form of Securities of such series;
(n) the Person or Persons who shall be Security registrar for the
Securities of such series if other than as provided for in this Indenture,
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 as provided for in this Indenture;
(o) if warrants for Securities of any series are to be issued, the
form in which the warrants shall be issued, the circumstances under and the
manner in which the warrants may be exercised, any obligation of the
Company concerning any Securities underlying the warrants and any other
terms or conditions regarding the warrants and any Securities underlying
the warrants; and
(p) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any series and the coupons appertaining to Bearer
Securities of such series, if any, issued under this Indenture in all respects
shall be equally and ratably entitled to the benefits hereof with respect to
such series without preference, priority or distinction on account of actual
time or times of authentication and delivery or Maturity of the Securities of
such series. All Securities of the same series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except as to denomination and except as may otherwise be provided either in an
indenture supplemental hereto or a resolution of the Board of Directors.
Section 2.02. Form of Securities and of Trustee's Certificate of
Authentication. The Registered Securities, if any, and the Bearer Securities
and related coupons, if any, of each series and the certificates of
authentication on the Securities shall be in substantially the form as shall be
established as provided in Section 2.01 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 any law or with any rules made pursuant thereto or with
any rules of any securities exchange or as may be determined consistently
herewith by the officers executing such Securities or coupons, as evidenced by
their execution of the Securities or coupons. If the form of Securities of any
series or coupons (including any Global Security) is established by action taken
pursuant to a resolution of the Board of Directors, a copy of an appropriate
record of such action shall be certified by the Secretary or any Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect
8
<PAGE>
as of the date of such certificate, and shall be delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 2.04(b) or
the authentication and delivery of such Securities.
Each Bearer Security and Coupon shall bear a legend substantially to
the following effect:
"Any United States Person will be subject to limitations under the
United States income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code."
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities or coupons, as evidenced by their execution of such Securities
or coupons.
The form of Trustee's certificate of authentication for all Securities
shall be as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned Indenture.
___________________________, as Trustee
By
--------------------------------------
Authorized Officer
Section 2.03. Securities in Global Form.
(a) If Securities of a series are issuable in whole or in part in
global form, as specified in the manner contemplated by Section 2.01, then,
notwithstanding the provisions of clause 2.01(k) or Section 2.04, such
Global Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby from time to time may be reduced to reflect exchanges.
Any endorsement of a Global Security to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby
shall be made in such manner and upon instructions given by such Person or
Persons as shall be specified in such Global Security or in the Company
Order to be delivered to the Trustee pursuant to Section 2.04(b).
(b) The provisions of the last sentence of Section 2.05(b) shall
apply to any Securities represented by a Global Security if such Securities
were never issued and sold by the Company (whether because of failure of
settlement or otherwise) and the Company delivers to the Trustee the Global
Security together with written instructions with regard to the reduction in
the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 2.05(b).
(c) Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form.
Section 2.04. Denomination, Authentication and Dating of Securities.
(a) Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Security for such series
approved or established pursuant to Section 2.02. In the absence of any
specification, as provided in Section 2.01, with respect to
9
<PAGE>
the 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 denomination of $5,000. Each Registered Security shall be dated as
of the date of its authentication. Each Bearer Security shall be dated as
of the date specified in the manner contemplated by Section 2.01.
(b) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication. Except as
otherwise provided in this Article II, the Trustee thereupon shall
authenticate and deliver such Securities in accordance with a Company
Order; provided, however, that in connection with its original issuance 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 from the person entitled to receive the Bearer
Security a Bearer Security Tax Certificate and only if the Company has no
reason to know that such certificate is false.
(c) To the extent authorized in or pursuant to a resolution of the
Board of Directors or established in an indenture supplemental hereto, such
Company Order may be electronically transmitted and may provide
instructions as to registration of holders, principal amounts, rates of
interest, Stated Maturities and other matters contemplated by such
resolution of the Board of Directors or supplemental indenture to be so
instructed in respect thereof.
(d) In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and, subject to Section 6.01, shall
be fully protected in relying upon:
(i) a copy of the resolution or resolutions of the Board of
Directors in or pursuant to which the terms and form of the Securities
were established, 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 as of the date of such certificate;
(ii) executed supplemental indenture, if any;
(iii) delivered in accordance with Section 16.05; and
(iv) Opinion of Counsel which shall state:
(A) that the form of such Securities and coupons, if any,
has been established by a supplemental indenture or by or
pursuant to a resolution of the Board of Directors in accordance
with Sections 2.01 and 2.02 in conformity with the provisions of
this Indenture;
(B) that the terms of such Securities and coupons, if any,
have been established in accordance with Section 2.01 and in
conformity with the other provisions of this Indenture;
(C) that such Securities, when authenticated and delivered
by the Trustee and issued (with coupons attached, if applicable)
by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in
10
<PAGE>
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to
general equity principles;
(D) that all conditions precedent, if any, provided for in
this Indenture have been complied with; and
(E) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities and
coupons, if any, have been complied with.
(e) If the Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the
Trustee, in accordance with this Section 2.04 and the Company Order with
respect to such series, shall authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and
shall be denominated in an aggregate amount equal to the aggregate
principal amount of the Outstanding Securities of such series to be
represented by one or more Global Securities, (ii) shall be registered, if
in registered form, in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction.
(f) The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.04 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken
or if the Trustee in good faith by its board of directors or trustees,
executive committee or a trust committee of directors or trustees or vice
presidents shall determine that such action would expose the Trustee to
personal liability to existing holders.
(g) Notwithstanding any contrary provision herein, if all Securities
of a series are not to be originally issued at one time, it shall not be
necessary for the Company to deliver to the Trustee a Company Order,
Officers' Certificate, resolution of the Board of Directors, supplemental
indenture or Opinion of Counsel otherwise required pursuant to Section 2.04
or Section 2.04 at or prior to the time of authentication of each Security
of such series if such documents are delivered to the Trustee or its agent
at or prior to the authentication upon original issuance of the first
Security of such series to be issued. In such event, any subsequent
request by the Company to the Trustee to authenticate Securities of such
series upon original issuance shall constitute a representation and
warranty by the Company that, as of the date of such request, the
statements made in the Officers' Certificate or other certificates
delivered pursuant to Section 2.04 shall be true and correct as if made on
such date. A Company Order, Officers' Certificate, resolution of the Board
of Directors or supplemental indenture delivered by the Company to the
Trustee in the circumstances set forth in this Section 2.04 may provide
that Securities that are the subject thereof will be authenticated and
delivered by the Trustee or its agent on original issue from time to time
in the aggregate principal amount established for such series pursuant to
such procedures acceptable to the Trustee as may be specified from time to
time by Company Order upon the telephonic, electronic or written order of
persons designated in such Company Order, supplemental indenture or
resolution of the Board of Directors (any such telephonic or electronic
instructions to be promptly confirmed in writing by such persons) and that
such persons are authorized to determine, consistent with such Company
Order, supplemental indenture or resolution of the Board of Directors, such
terms and conditions of said Securities
11
<PAGE>
as are specified in such Company Order, supplemental indenture or
resolution of the Board of Directors.
(h) Each Depositary designated pursuant to clause 2.01(i) for a Global
Security in registered form, at the time of its designation and at all
times while it serves as Depositary, shall be a clearing agency registered
under the Securities Exchange Act of 1934 and any other applicable statute
or regulation.
Section 2.05. Execution of Securities.
(a) The Securities and the related coupons shall be signed in the name
and on behalf of the Company by the manual or facsimile signature of its
Chairman of the Board, its Chief Executive Officer or its President or, in
lieu thereof, of any Senior Vice President or its Treasurer and attested by
its Secretary, under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise). For the purpose
of any such signature or attestation, the Company may adopt and use the
facsimile signature of any person who has been or is or shall be such
officer.
(b) No Security or appurtenant coupon shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose unless
such security bears thereon a certificate of authentication substantially
in the form set forth in Section 2.02, manually executed by the authorized
signatory of the Trustee. Such certificate by the Trustee upon any
Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered under
this Indenture. Except as permitted by Section 2.07, 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 Security or portions thereof shall
have been duly authenticated and delivered hereunder but never issued and
sold by the Company (whether because of failure of settlement or
otherwise), and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 2.10 together with a written statement
stating that such Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and
shall not be entitled to the benefits of this Indenture.
(c) In case any officer of the Company whose manual or facsimile
signature appears on any of the Securities or coupons shall cease to be
such officer before the Securities or coupons so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company,
such Securities or coupons nevertheless may be authenticated and delivered
or disposed of as though the person whose manual or facsimile signature
appears on such Securities or coupons had not ceased to be such officer of
the Company; and any Security or coupon may bear the manual or facsimile
signature on behalf of the Company by such persons as, at the actual date
of the execution of such Security or coupon, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any
such person was not such an officer.
Section 2.06. Exchange and Registration of Transfer of Securities.
(a) Registered Securities of any series may be exchanged for a like
aggregate principal amount of Registered Securities of other authorized
denominations and of like tenor and terms of the same series. Registered
Securities to be exchanged shall be surrendered at the office or agency to
be maintained by the Company pursuant to Section 4.02 in each Place of
Payment
12
<PAGE>
for such series of Registered Securities, and the Company shall execute and
cause to be registered, and the Trustee shall authenticate and deliver in
exchange therefor, the Registered Security or Securities which the
Securityholder making the exchange shall be entitled to receive. In no
event may Registered Securities, including Registered Securities received
in exchange for Bearer Securities, be exchanged for Bearer Securities.
(b) For each series of Registered Securities, the Company shall cause
to be kept in at least one such office or agency a Security register (the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for registration of Registered
Securities and registration of transfer of Registered Securities as
provided in this Article Two. Each such Security Register shall be in
written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times such Security
Registers shall be open for inspection by the Trustee. Upon due presentment
for registration of transfer of any Registered Security of any series at
any such office or agency, the Company shall execute and register and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Securities of the same series and
of like tenor and terms for an equal aggregate principal amount. Unless
otherwise provided (pursuant to Section 2.01 or otherwise), the Company
initially appoints the Trustee, at the principal office of the Trustee, as
a Security registrar for each series of Registered Securities.
(c) All Registered Securities presented for registration of transfer
or for exchange or payment, if so required by the Company or the Trustee,
shall be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee
duly executed by, the holder or his attorney duly authorized in writing.
(d) To the extent specified in the manner provided by Section 2.01,
Registered Securities or Bearer Securities of any series may be issued in
exchange for Bearer Securities (except as otherwise specified in the manner
contemplated by Section 2.01 with respect to a Bearer Security in global
form) of the same series, of any authorized denomination and of like tenor
and terms and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at any office or agency specified in the manner
provided by Section 2.01, with all unmatured coupons and all unpaid matured
coupons thereto appertaining. If the holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or unpaid matured coupon or
coupons, 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 amount represented by such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived
by the Company and the Trustee if there is furnished to them such security
or indemnity as they may require to hold harmless each of them and any
Paying Agent. If thereafter the holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such 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 4.02, 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. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the holder making the exchange is entitled to
receive.
(e) If at any time the Depositary for the Global Securities of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities of such series or if at any time the
Depositary for the Registered Securities of such series shall no longer be
eligible under Section 2.03 because it no longer is a clearing agency
registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation, the Company
13
<PAGE>
shall appoint a successor Depositary with respect to the Securities of such
series. If a successor Depositary for the Global 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 2.01 shall no longer be effective with respect to the
Securities of such series and the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver
Securities of such series 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.
(f) The Company at any time and in its sole discretion may determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver,
Securities of such series 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.
(g) If specified by the Company pursuant to Section 2.01 with respect
to a series of Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver:
(i) to each Person specified by such Depositary a new Security or
new Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(ii) 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 Securities delivered to holders thereof.
(h) In any exchange provided for in Section 2.06(e), Section 2.06(f)
or Section 206(g), the Company will execute and the Trustee will
authenticate and deliver Securities (i) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (ii) in definitive bearer form in authorized
denominations, with unmatured coupons attached, if the Securities of such
series are issuable as Bearer Securities or (iii) as either Registered or
Bearer Securities, if the Securities of such series are issuable in either
form; provided, however, that (A) 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 Bearer Security Tax Certificate, (B) delivery
of a Bearer Security shall occur only outside the United States and (C) no
definitive Bearer Security will be issued if the Company or the Trustee has
reason to know that such certificate is false.
(i) Upon the exchange of all of a Global Security for Securities in
certificated form, such Global Security shall be cancelled by the Trustee.
The exchange of any portion of a Global
14
<PAGE>
Security for Securities in certificated form shall be subject to Section
2.03(a). Registered Securities issued in exchange for all or part of a
Global Security 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 Securities are so registered. The
Trustee shall deliver Bearer Securities issued in exchange for all or part
of a Global Security 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 (A) no definitive Bearer Security shall be
delivered in exchange for all or part of a temporary Global Security unless
the Company or its agent shall have received from the person entitled to
receive the definitive Bearer Security a Bearer Security Tax Certificate,
(B) delivery of a Bearer Security shall occur only outside the United
States and (C) no definitive Bearer Security will be issued if the Company
or the Trustee has reason to know that any such certificate is false.
(j) No service charge shall be made for any exchange or registration
of transfer of 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 such exchange or registration of transfer.
(k) The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any particular series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of such series selected for
redemption under Section 11.03 and ending at the close of business on the
day of such mailing, (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
that series, provided that such Registered Security shall be surrendered
immediately for redemption with written instruction for payment consistent
with the provisions of this Indenture.
(l) Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange; and neither the
Company nor the Trustee or any 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 could 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 Order to the
Security registrar.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities.
(a) In case any temporary or definitive Security of any series or any
related coupon shall become mutilated or be destroyed, lost or stolen, the
Company, in its discretion, may execute, and upon its request and in the
absence of notice to the Company and the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Trustee shall
authenticate and deliver a new Security of the same series or related
coupon, of equal aggregate principal amount and of like tenor and terms
bearing a number not contemporaneously Outstanding, in exchange and
substitution for the mutilated Security or coupon, or in lieu of and
15
<PAGE>
in substitution for the Security or coupon so destroyed, lost or stolen. In
every case the applicant for a substituted Security or coupon shall furnish
to the Company and to the Trustee such security or indemnity as may be
required by them to hold each of them harmless, and, in every case of
destruction, loss or theft, the applicant also shall furnish to the Company
and to the Trustee evidence to their satisfaction of the destruction, loss
or theft of such security or coupon and of the ownership of such Security
or coupon.
(b) The Trustee may authenticate any such substitute Security and
deliver the same upon the written request or authorization of any officer
of the Company. Upon the issuance of any substitute Security or coupon,
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 reasonable expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Security or coupon which has matured or
is about to mature shall become mutilated or be destroyed, lost or stolen,
the Company, instead of issuing a substitute Security or coupon, may pay or
authorize the payment of the same (without surrender thereof except in the
case of a mutilated Security or coupon) if the applicant for such payment
shall furnish to the Company and to the Trustee such security or indemnity
as may be required by them to hold each of them harmless and, in the case
of destruction, loss or theft, evidence satisfactory to the Company and the
Trustee of the destruction, loss or theft of such Security or coupon and of
the ownership of such Security or coupon.
(c) Every substitute Security or coupon issued pursuant to the
provisions of this Section 2.07 by virtue of the fact that any Security or
coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security or coupon shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities or coupons duly issued under this
Indenture. All Securities or coupons shall be held and owned by the
holders upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their
surrender.
(d) Notwithstanding the foregoing, the payment of principal of and any
premium and interest on Bearer Securities, except as otherwise provided in
Section 4.02, shall be payable only at an office or an agency located
outside of the United States, and, with respect to any coupons, interest
represented thereby shall be payable only upon presentation and surrender
of such coupons.
Section 2.08. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series,
the Company may execute and the Trustee shall authenticate and deliver
temporary Securities (printed or lithographed). Temporary Securities shall
be issuable in any authorized denomination, and substantially in the form
of the definitive Securities of such series (and of like tenor and terms)
in lieu of which they are issued in registered form or, if authorized, in
bearer form with one or more coupons or without coupons, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Such temporary
Securities may be in global form, representing all or any part of the
Outstanding Securities of such series.
16
<PAGE>
(b) Unless otherwise provided pursuant to Section 2.01:
(i) Except in the case of temporary Securities in global form,
every such temporary Security shall be authenticated by the Trustee in
substantially the same manner, and with the same effect, as the
definitive Securities. Without unreasonable delay the Company will
execute and deliver to the Trustee definitive Securities of such
series and thereupon any or all temporary Securities of such series
(accompanied, if applicable, by all unmatured coupons and all unpaid
matured coupons appertaining thereto) may be surrendered in exchange
therefor at the principal office of the Trustee, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such
series of authorized denominations. Such exchange shall be made at
the Company's expense and without any charge to the holder. Until so
exchanged, the temporary Securities of any series in all respects
shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered under
this Indenture. Notwithstanding the foregoing, no Bearer Security
shall be delivered in exchange for a Registered Security, and a Bearer
Security shall be delivered in exchange for a Bearer Security only in
compliance with the conditions set forth in Section 2.06.
(ii) If Securities of any series are issued in temporary global
form, any such temporary Global Security, unless otherwise provided
pursuant to Section 2.01, shall be delivered to the Depositary for the
benefit of Euroclear and CEDEL for credit to the respective accounts
of the beneficial owners of such Securities or to such other accounts
as they may direct.
(iii) Any such temporary Global Security shall be exchangeable,
on the terms and in the manner set forth therein, in whole or in part,
for an equal aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor and
terms as the portions of such temporary Global Security to be
exchanged. Any definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary Global Security only outside the
United States and only upon receipt by the Trustee from the Person
entitled to receive such definitive Bearer Security of a Bearer
Security Tax Certificate.
(iv) Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall be entitled in all respects
to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor and terms authenticated and
delivered hereunder, except that any interest payable with respect to
a temporary Global Security will be paid as specified therein.
Section 2.09. Payment of Interest; Interest Rights. 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 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
17
<PAGE>
the provisions of this Indenture. Payment of interest on any Registered Security
may be made as provided in Section 3.02.
Any interest on any security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date ("Defaulted Interest")
forthwith shall cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder; and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (i) or
(ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as provided in this clause. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 nor less than ten days prior to the date of
the proposed payment and not less than ten days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
promptly shall notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first class, postage prepaid, to each
Security Holder at his address as it appears in the Security Register,
not less than ten days prior to such Special Record date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been given as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following
clause (ii).
(ii) The Company may make payment of any defaulted Interest on
any such Security in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of
that series may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.09, each Security of
any series delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, that were carried by such
other Security.
Subject to the limitations set forth in Section 4.02, the holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 4.02.
18
<PAGE>
Section 2.10. Cancellation of Securities Paid, etc. All Securities and
coupons surrendered for the purpose of payment, exchange or registration of
transfer, if surrendered to the Company or any Paying Agent or any Security
registrar, shall be delivered to the Trustee and promptly cancelled by the
Trustee, or, if surrendered to the Trustee, promptly shall be cancelled by it;
and no Securities or coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee may destroy
cancelled Securities or coupons and will deliver a certificate of such
destruction of the Company.
ARTICLE III.
SUBORDINATION OF SECURITIES
Section 3.01. Agreement of Securityholders that Securities Subordinated to
Extent Provided. The Company, for itself and its successors and assigns,
covenants and agrees and each holder of the Securities and any related coupons
by his acceptance of a Security or coupon likewise covenants and agrees that,
subject to the provisions of Article Fourteen, the payment of the principal of
and any premium and interest on any and all Securities and coupons is hereby
expressly subordinated, to the extent and in the manner set forth in this
Article Three, to the prior payment in full of all Senior Indebtedness. The
provisions of this Article Three shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are hereby made obligees under
this Article III as if their names were written in this Article III as such, and
they and each of them may proceed to enforce the provisions of this Article III.
Section 3.02. Company Not to Make Payments with Respect to Securities in
Certain Circumstances.
(a) If payment of the Securities is accelerated because of an
Acceleration Event, the Company promptly shall notify holders of Senior
Indebtedness of the acceleration.
(b) The Company may not pay principal of or any premium or interest on
the Securities and may not acquire any Securities for cash or property
other than capital stock of the Company if:
(i) a default on Senior Indebtedness occurs and is continuing
that permits holders of such Senior Indebtedness to accelerate its
maturity; and
(ii) such default is the subject of judicial proceedings or the
Company receives written notice of such default from a representative
of all the holders of such Senior Indebtedness. If the Company
receives any such notice, a similar notice received within 360 days
thereafter relating to the same default on the same issue of Senior
Indebtedness shall not be effective for purposes of this Section
3.02(b).
The Company may resume payments on the Securities and may acquire them
when:
(i) such default is cured or waived or shall have ceased to exist
or the Senior Indebtedness to which such default relates shall have
been paid in full in cash or cash equivalent; or
19
<PAGE>
(ii) if such default is not the subject of judicial proceedings,
120 days pass after such written notice is received by the Company,
but only if this Article III does not otherwise prohibit such payment
or acquisition at that time.
(c) In the event that notwithstanding the provisions of this Section
3.02 the Company shall make any payment to the Trustee on account of the
principal of or any premium or interest on the Securities prohibited by
Section 3.02(b), then, unless and until such payment is thereafter
permitted under Section 3.02(b), such payment shall be held by the Trustee
in trust for the benefit of, and shall be paid forthwith over and delivered
to, the holders of Senior Indebtedness (pro rata as to each of such holders
on the basis of the respective amounts of Senior Indebtedness held by them)
or their representative or the trustee under the indenture or other
agreement (if any) pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests may
appear, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in
accordance with the terms of such Senior Indebtedness, after giving effect
to any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
(d) The provisions of this Section 3.02 shall not apply to any payment
with respect to which Section 3.03 shall apply.
Section 3.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company. Upon any
distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or otherwise):
(a) The holders of all Senior Indebtedness first shall be entitled to
receive payment in full of the principal of and any premium and interest
due on Senior Indebtedness before the holders of the Securities are
entitled to receive any payment on account of the principal of or any
premium or interest on the Securities (other than payment in shares of
stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization
or readjustment, which stock and securities are subordinated to the payment
of all Senior Indebtedness and securities received in lieu thereof that at
the time may be outstanding, except to the extent that such stock and
securities received in lieu of Senior Indebtedness by their terms are
expressly not superior in right of payment to the Securities).
(b) Any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than shares of
stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization
or readjustment, which stock and securities are subordinated to the payment
of all Senior Indebtedness and securities received in lieu thereof which
may at the time be outstanding), to which the holders of the Securities and
any related coupons would be entitled except for the provisions of this
Section 3.03, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or other trustee or agent,
directly to the holders of Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution or provision for such Senior Indebtedness to the
holders of such Senior Indebtedness.
20
<PAGE>
(c) In the event that notwithstanding the foregoing provisions of this
Section 3.03, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (other than
shares of stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan or
reorganization or readjustment, which stock and securities are subordinated
to the payment of all Senior Indebtedness and securities received in lieu
thereof that at the time may be outstanding, except to the extent that such
stock and securities received in lieu of Senior Indebtedness by their terms
are expressly not superior in right of payment of the Securities), shall be
received by the Trustee or the holders of the Securities on account of
principal or any premium or interest on the Securities before all Senior
Indebtedness is paid in full, or effective provision made for its payment,
such payment or distribution (subject to the provisions of Section 3.06 and
Section 3.07) shall be received and held in trust for and shall be paid
over to the holders of the Senior Indebtedness remaining unpaid or
unprovided for or their representative or representatives, or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, for
application to the payment of such Senior Indebtedness until all such
Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution or provision for such Senior
Indebtedness to the holders of such Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of the
Company into, another Person or the dissolution, winding up, liquidation or
reorganization of the Company following the conveyance, transfer or lease
of its properties and assets substantially as an entirety to another Person
upon the terms and conditions set forth in Article X shall not be deemed a
dissolution, winding up, liquidation or reorganization of the Company for
the purposes of this Section 3.03 if the Person formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, as a part of such
consolidation, merger, conveyance, transfer or lease, shall comply with the
conditions set forth in Article X.
Section 3.04. Securityholders to be Subrogated to Rights of Holders of
Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness,
the holders of the Securities and any related coupons shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full. For the
purpose of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness (whether by or on behalf of the Company or by or on behalf
of the holders of the Securities or any related coupons) by virtue of this
Article III that otherwise would have been made to the holders of the Securities
or coupons shall be deemed, as between the Company and the holders of the
Securities and coupons, to be payment by the Company to or on account of the
Senior Indebtedness.
Section 3.05. Obligation of the Company Unconditional, etc. The provisions
of this Article III are and are intended solely for the purpose of defining the
relative rights of the holders of the Securities and any related coupons on the
one hand and the holders of the Senior Indebtedness on the other hand. Nothing
contained in this Article III or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company and the
holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Securities the principal of and any
premium and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Securities or the coupons and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything in this Article III or elsewhere in this Indenture prevent the Trustee
or the holder of any Security
21
<PAGE>
or coupon from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Three of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Nothing contained in this Article Three is intended to alter the rights between
the holders of the Securities and any related coupons and the Company's
creditors other than the holders of the Securities or coupons and the holders of
Senior Indebtedness. Upon any payment or distribution of assets of the Company
referred to in this Article III, the Trustee, subject to the provisions of
Section 6.01, and the holders of the Securities and any related coupons shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any dissolution, winding up, liquidation or reorganization
proceedings are pending, or a certificate of the liquidating trustee or agent or
other person making any distribution to the Trustee or to the holders of the
Securities and coupons, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of, the amounts of, the amounts
payable on, the amount or amounts paid or distributed on and all other facts
pertinent to the Senior Indebtedness and other indebtedness of the Company and
all other facts pertinent to this Article III.
Section 3.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Company shall give prompt written notice to a
Responsible Officer of the Trustee located at its principal office of any fact
known to the Company that would prohibit the making of any payment to or by the
Trustee with respect to the Securities or any related coupons. Notwithstanding
the provisions of Section 3.01 or Section 3.02 or any other provision of this
Indenture, the Trustee shall not at any time be charged with knowledge of the
existence of any fact that would prohibit the making of any payment of money to
or by the Trustee, unless and until the Trustee shall have received at the
principal office of the Trustee written notice of such facts from the Company or
from one or more holders of Senior Indebtedness or from any trustee for such
holders; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 6.01, shall be entitled to assume that no
such facts exist.
Section 3.07. Application by Trustee of Money Deposited with It. Anything
in this Indenture to the contrary notwithstanding, any deposit of money by the
Company with the Trustee (whether or not in trust) for the payment of the
principal of or any premium or interest on any Securities or coupons shall be
subject to the provisions of Sections 3.01, 3.02, 3.03 and 3.04 except that, if
not less than three Business Days prior to the date on which by the terms of
this Indenture any such money may become payable for any purpose (including
without limitation the payment of principal of or any premium or interest on any
Security and any amounts immediately due and payable upon the execution of any
instrument acknowledging satisfaction and discharge of this Indenture as
provided in Article XIV) the Trustee shall not have received with respect to
such money the notice provided for in Section 3.06, then, anything contained in
this Article III to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which it was received, and shall not be affected by any notice to the
contrary that may be received by it during such three Business Day period.
Section 3.08. 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 under this Indenture, the term "Trustee" as used in this
Article III shall be construed (unless the context otherwise requires) as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article III in
addition to or in place of the Trustee.
Section 3.09. Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness. No right of any present or future
holder of any Senior Indebtedness to enforce subordination as provided in this
Article III shall be prejudiced or impaired at any time in any way 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
22
<PAGE>
such holder, or by any noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge of such act,
failure to act or noncompliance with any such holder may have or otherwise be
charged with.
Section 3.10. Securityholders Authorize Trustee to Effectuate
Subordination of Securities. Each holder of the Securities by his acceptance of
a Security authorizes and expressly directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article Three and appoints the Trustee his attorney-in-fact for
such purpose, including in the event of any dissolution, winding up, liquidation
or reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
otherwise), action tending towards liquidation of the business and assets of the
Company, the immediate filing of a claim for the unpaid balance of its or his
Securities in the form required in such proceedings and action causing such
claim to be approved. If the Trustee does not file a proper claim or proof of
debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holder or holders
of Senior Indebtedness hereby are authorized to and have the right to file and
hereby are authorized to file an appropriate claim for and on behalf of the
holders of such Securities.
Section 3.11. Right of Trustee to Hold Senior Indebtedness. The Trustee
shall be entitled to all the rights set forth in this Article III in respect of
any Senior Indebtedness at any time held by it to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall be construed
to deprive the Trustee of any of its rights as such holder.
Section 3.12. Article III Not to Prevent Events of Default. The failure to
make a payment on account of principal or any premium or interest by reason of
any provision in this Article III shall not be construed as preventing the
occurrence of an Event of Default under Section 5.01.
Section 3.13. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article III or
otherwise.
ARTICLE IV.
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal and Interest. The Company duly and
punctually will pay or cause to be paid the principal of and any premium and
interest on the Securities of each series at the places, at the respective times
and in the manner provided in this Indenture and in the Securities. Any
interest due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
Section 4.02. Offices for Notices and Payments, etc. So long as any
Securities of a series remain Outstanding, the Company will maintain in each
Place of Payment for such series of Securities an office or agency where the
Securities of that series (but, except as otherwise provided below, unless such
Place of Payment is located outside the United States, not Bearer Securities)
may be presented for payment, for registration of transfer and for exchange as
provided in this Indenture and where notices
23
<PAGE>
and demands to or upon the Company in respect of the Securities or of this
Indenture may be served. If 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
that is located outside the United States where Securities of such series and
the related coupons may be presented for payment. The Company will give to the
Trustee prompt written notice of the location of each such office or agency and
of any change of location thereof. In case the Company shall fail to maintain
any such office or agency or shall fail to give such notice of the location or
of any change in the location thereof, presentations and demands may be made and
notices may be served at the principal office of the Trustee, and the Company
hereby initially appoints the Trustee its agent to receive all such
presentations and demands, except that Bearer Securities of that series and the
related coupons may be presented for payment at the place specified for that
purpose pursuant to Section 2.01(e). Unless otherwise provided pursuant to
Section 2.01, the Company hereby initially designates as the Place of Payment
for each series of Securities (other than Bearer Securities of that series and
the related coupons) the Borough of Manhattan, The City of New York, New York
and appoints the Trustee, at the principal office of the Trustee, as Paying
Agent in such city. Notwithstanding any other provisions to the contrary, the
Company at its option may make payment of principal and any premium and interest
with respect to any Registered Security by check mailed to the Person entitled
thereto, as such address appears on the Security Register, except that a holder
of $10,000,000 or more in aggregate principal amount of Securities of such
series and of like tenor and terms will be entitled to receive payments by wire
transfer of immediately available funds if appropriate wire transfer
instructions shall have been received in writing by the Trustee not later than
ten Business Days prior to the applicable Interest Payment Date.
No payment of principal of or any premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that
payment of principal of and any premium and interest 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 or interest 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 2.01 with
respect to any series of Securities, at the option of the holder of any Bearer
Security or related coupon payment may be made by mailing a check to an address
outside the United States or by transfer to an account maintained by the payee
with a bank located outside the United States.
The Company also from time to time may designate one more offices or
agencies (in or outside of such Place of Payment) where the Securities of one or
more series and any appurtenant coupons (subject to the preceding paragraph) may
be presented or surrendered for any and all such purposes, and from time to time
may rescind such designations. The Company will give prompt written notice to
the Trustee of any such designation and any change in the location of any such
office or agency.
Section 4.03. Provisions as to Paying Agent.
(a) The Company, with respect to the Securities of each series, prior
to each due date of principal of or any premium or interest on such
Securities, will deposit with the Paying Agent for such Securities a sum
sufficient to pay the principal, premium or interest so becoming due, such
sum to be held in trust for the benefit of the persons entitled to such
principal, premium or interest. If the Company shall appoint a Paying
Agent other than the Trustee with respect to the Securities of any series,
the Company will notify the Trustee of its making, or failure to make,
24
<PAGE>
any such payment; and the Company also shall cause any such Paying Agent to
execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.03, as
follows:
(i) that it will hold all sums held by it as such agent for the
payment of the principal of or any premium or interest on such
Securities (whether such sums have been paid to it by the Company or
by any other obligor on such Securities) in trust for the benefit of
the Persons entitled thereto;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on such Securities) to make any
payment of the principal of or any premium or interest on such
Securities when the same shall be due and payable; and
(iii) that it will forthwith pay to the Trustee, at any time
during the continuance of an Event of Default, upon the written
request of the Trustee, all sums so hold by it as such agent.
(b) If the Company shall act as its own Paying Agent with respect to
the Securities of any series, on or before each due date of the principal
of or any premium or interest on the Securities of such series, it will set
aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal, premium or interest so
becoming due and will notify the Trustee of any failure to take such action
and of any failure by the Company (or by any other obligor under such
Securities) to make any payment of the principal of or any premium or
interest on such Securities when the same shall become due and payable.
(c) Notwithstanding anything in this Section 4.03 to the contrary, the
Company, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture or for any other reason, may pay or by Company
Order direct any Paying Agent to pay to the Trustee all sums held in trust
by the Company or any Paying Agent under this Indenture, such sums to be
held by the Trustee upon the trusts contained in this Indenture.
(d) Notwithstanding anything in this Section 4.03 to the contrary, the
agreement to hold sums in trust as provided in this Section 4.03 is subject
to Sections 14.03 and 14.04.
Section 4.04. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each calendar year commencing with the
first calendar year following the issuance of Securities of any series under
this Indenture, a written certificate of the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
covering the period from the date of issuance of such Securities to the end of
the calendar year in which such Securities were issued, in the case of the first
such certificate, and covering the preceding calendar year, in the case of each
subsequent certificate, stating, as to each signer of such certificate, that:
(a) a review of the activities of the Company during the year and of
performance under this Indenture has been made under his supervision;
(b) to the best of his knowledge, based on such review, the Company
has fulfilled all its conditions and covenants under this Indenture
throughout such year, or, if there has been a default in the fulfillment of
any such condition or covenant, specifying each such default known to him
and the nature and status of such default; and
25
<PAGE>
(c) such certificate sets forth as of the end of such year a list of
all Principal Constituent Banks.
Section 4.05. Notice of Certain Defaults. The Company will deliver to the
Trustee within five days after the occurrence thereof written notice of any
event which with the giving of notice or the lapse of time or both would be an
Event of Default under Section 5.01(c).
Section 4.06. Corporate Existence. Except as otherwise provided in Article
X, the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Securityholders.
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT OR ACCELERATION EVENT
Section 5.01. Events of Default. "Event of Default," when used with
respect to Securities of any series, means each of the following events unless
it is either inapplicable to a particular series or is specifically deleted or
modified in the supplemental indenture or resolution of the Board of Directors
under which such series of Securities is issued or in the form of Security for
such series:
(a) default in the payment of any installment of interest upon any of
the Securities of that series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days;
(b) default in the payment of the principal of or any premium on any
of the Securities of that series as and when the same shall become due and
payable at their Stated Maturity, upon redemption, by declaration or
otherwise;
(c) default in the payment of any sinking fund installment or
analogous obligation as and when the same shall become due and payable by
the terms of the Securities of the series;
(d) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities of such series or in this Indenture (other than a covenant or
agreement a default in the performance of which or the breach of which is
specifically provided for elsewhere in this Section 5.01 or which has
expressly been included in this Indenture solely for the benefit of one or
more series of Securities other than such series), and continuance of such
failure for a period of 90 days after the date on which written notice of
such failure, requiring the Company to remedy the same, shall have been
given to the Company by the Trustee, or to the Company and the Trustee by
the holders of at least 25% in aggregate principal amount of the Securities
of such series at the time Outstanding;
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company or a Principal Constituent
Bank in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the
26
<PAGE>
Company or a Principal Constituent Bank or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Company or a Principal Constituent Bank shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall consent to
the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) of the
Company or a Principal Constituent Bank or for any substantial part of its
property, or shall make any general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due or
shall take any corporate action in furtherance of any of the foregoing.
If an Acceleration Event with respect to the Securities of any series at the
time Outstanding occurs and is continuing, then and in each such case, unless
the principal of all the Securities of such series already shall have become due
and payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding, by notice in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the principal amount of all the Securities of that series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable. This provision, however, is subject to
the condition that, at any time after such a declaration of acceleration, and
before any judgment or decree for the payment of the money due shall have been
obtained or entered as hereinafter provided, the holders of a majority in
aggregate principal amount of the Securities of such series then Outstanding, by
written notice to the Company and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences, if:
(i) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay:
(A) all matured installments of interest on all the
Securities of that series and the principal of and any premium on
any and all Securities of that series that shall have become due
otherwise than by acceleration (with interest on overdue
installments of interest (to the extend that payment of such
interest is enforceable under applicable law) and on such
principal and premium at the rate borne by the Securities of that
series, to the date of such payment or deposit); and
(B) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(ii) any and all defaults with respect to Securities of that
series under this Indenture, other than the nonpayment of principal of
and accrued interest on Securities that shall have become due by
acceleration, shall have been cured or waived as provided in Section
5.07.
No such waiver or rescission and annulment shall extend or shall affect any
subsequent default or shall impair any right consequent thereon.
27
<PAGE>
In case the Trustee or any Securityholder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or any Securityholder, then
and in every such case the Company, the Trustee and such Securityholders,
subject to any determination in such proceeding, shall be restored respectively
to their several positions and rights under this Indenture, and all rights,
remedies and powers of the Company, the Trustee and such Securityholders shall
continue as though no such proceeding had been taken.
Section 5.02. Payment of Securities on Default; Suit Therefor.
(a) Subject to the provisions of Article III, in case default shall be
made in the payment of (i) any installment of interest upon any of the
Securities as and when the same shall become due and payable, and such
default shall have continued for a period of 30 days, or (ii) the principal
of or any premium on any of the Securities as and when the same shall have
become due and payable whether at Maturity of the Securities, by
declaration or otherwise, then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities,
the whole amount that then shall have become due and payable on all such
Securities for principal, premium or interest, or any combination thereof,
as the case may be, with interest upon the overdue principal and premium
and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest, at the rate
borne by the Securities; and, in addition, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents, attorneys and counsel.
(b) In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or any other obligor on the Securities and coupons and collect in
the manner provided by law out of the property of the Company or any other
obligor on the Securities and coupons, wherever situated, the money
adjudged or decreed to be payable.
(c) In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the
Securities and coupons under Title 11 of the United States Code or any
other applicable law, or in case a receiver or trustee shall have been
appointed for the property of the Company or such other obligor, or in the
case of any other similar judicial proceedings relative to the Company or
other obligor on the Securities and coupons, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as
expressed in the Securities or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and any premium and interest owing
and unpaid in respect of the Securities, and, in case of any judicial
proceedings, (i) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Securityholders allowed in such judicial proceedings relative to the
Company or any other obligor on the Securities and coupons, its or their
creditors, or its or their property, and (ii) to collect and receive any
money or other
28
<PAGE>
property payable or deliverable on any such claims, and to distribute the
same after the deduction of and expenses; and any receiver, assignee or
bankruptcy or reorganization is hereby by each of the Securityholders 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 Securityholders, to
pay to the Trustee any amount due it for reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel and
any other amounts due the Trustee under Section 6.06. To the extent that
such payment of reasonable compensation, expenses and counsel fees out of
the trust estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out
of, any and all distributions, dividends, money, securities and other
property which the holder of the Securities and coupons may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
(d) Nothing contained in this Section 5.02 shall be deemed to
authorize the Trustee to authorize or consent to or adopt on behalf of any
Securityholder any plan of reorganization or arrangement affecting the
Securities or related coupons or the rights of any Securityholder, or to
authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Securities or related coupons, may be
enforced by the Trustee without the possession of any of the Securities or
coupons, or the production thereof in any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, shall be for the ratable benefit of the holders of the
Securities and related coupons.
Section 5.03. Application of Money Collected by Trustee. Any money
collected by the Trustee with respect to any series of Securities or related
coupons pursuant to Section 5.02 shall be applied, subject to the provisions of
Article III, in the order following, at the date or dates fixed by the Trustee
for the distribution of such money, upon presentation of the several Securities
of such series or coupons, or both, as the case may be, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To payment of all amounts then due the Trustee under Section
6.06;
SECOND: In case the principal of the Outstanding Securities of that
series shall not have become due and be unpaid, to the payment of interest
on the Securities of that series in the order of the Maturity of the
installments of such interest, with interest (to the extent enforceable
under applicable law) upon the overdue installments of interest at the rate
borne by the Securities of that series, such payments to be made ratably to
the persons entitled thereto; and
THIRD: In case the principal of the Outstanding Securities of that
series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of that
series for principal and any premium and interest, with interest on the
overdue principal and premium and (to the extent enforceable under
applicable law) upon overdue installments of interest at the rate borne by
the Securities of that series; and in case such money shall be insufficient
to pay in full
29
<PAGE>
the whole amounts so due and unpaid upon the Securities of that series,
then to the payment of such principal and any premium and interest without
preference or priority of principal over interest, or of interest over
principal or of any premium over principal or interest, or of principal or
interest over any premium or of any installment of interest over any other
installment of interest, or of any Security of that series over any other
Security of that series, or of any coupon related to a Security of a series
over any other coupon related to a Security of the same series, ratably to
the aggregate of such principal and any premium and accrued and unpaid
interest.
Section 5.04. Proceedings by Securityholders. No holder of any Security of
any series or any related coupon shall have any right to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy under this Indenture, unless such holder previously shall have given to
the Trustee written notice of default and of the continuance thereof, as
provided in Section 5.01, and unless also (i) the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee under this Indenture and shall have
offered to the Trustee such reasonable indemnity as the Trustee may require
against the costs, expenses and liabilities to be incurred in compliance with
such request, (ii) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding and (iii) no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the
holders of a majority in principal amount of the Outstanding Securities of that
series; it being understood and intended, and being expressly covenanted by each
Person who acquires and holds a Security or related coupon with every other such
Person, that no one or more holders of Securities 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 holder of such
Securities or coupons, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner provided in this Section 5.04 and for the equal,
ratable and common benefit of all holders of Securities and coupons.
Notwithstanding any other provision of this Indenture, however, the right
of any holder of any Security to receive payment of the principal of and any
premium and interest on such Security on or after the respective Stated
Maturities, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company, shall not be impaired or
affected without the consent of such holder.
Section 5.05. Proceedings by Trustee. In case of an Event of Default under
this Indenture, the Trustee in its discretion may proceed to protect and enforce
its rights and the rights of the Securityholders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other proper remedy or legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 5.06. Remedies Cumulative and Continuing; Delay or Omission Not
Waiver. All rights, powers and remedies conferred upon or reserved to the
Trustee or to the Securityholders, to the extent permitted by law, shall be
deemed cumulative and not exclusive of any thereof or of any other rights,
powers and remedies available to the Trustee or the holders of the Securities
and related coupons, now or hereafter existing, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture; and no delay or omission of the Trustee
or of
30
<PAGE>
any holder of any of the Securities or related coupons to exercise any such
right, power or remedy shall impair any such right, power or remedy, or shall be
construed to be a waiver of any default or an acquiescence in such default; and,
subject to the provisions of Section 5.04, every power and remedy conferred upon
or reserved to the Trustee or to the Securityholders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders. The assertion of any right, power or remedy shall not prevent
the concurrent assertion of any other right, power or remedy.
Section 5.07. Direction of Proceedings and Waiver of Defaults by Majority
of Securityholders.
(a) The holders of a majority in aggregate principal amount of the
Securities of all series affected (voting as one class) at the time
Outstanding determined in accordance with Section 7.04 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; provided, however, that (i) such direction may not be in
conflict with law or this Indenture or expose the Trustee to personal
liability or be unduly prejudicial to the holders of the Securities and
related coupons not joining in the direction, and (ii) the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with
this Indenture and such direction.
(b) Prior to any declaration that the principal of the Outstanding
Securities of any series is due and payable, the holders of a majority in
aggregate principal amount of the Securities of that series at the time
Outstanding on behalf of the holders of all of the Securities of that
series may waive any past default or Event of Default or Acceleration Event
under this Indenture and its consequence except a default under a covenant
in this Indenture that, pursuant to Section 9.02, cannot be modified
without the consent of each holder of a Security of the series affected
thereby. Upon any such waiver the Company, the Trustee and the holders of
the Securities of that series and the related coupons shall be restored to
their former positions and rights under this Indenture, respectively; but
no such waiver shall extend to any subsequent or other default or Event of
Default or Acceleration Event or impair any right consequent thereon.
Whenever any default or Event of Default or Acceleration Event under this
Indenture shall have been waived as permitted by this Section 5.07, such
default or Event of Default or Acceleration Event, for all purposes of the
Securities, the related coupons and this Indenture, shall be deemed to have
been cured and to be not continuing.
Section 5.08. Notices of Defaults. The Trustee, within 90 days after the
occurrence of a default with respect to Securities of any series, shall mail to
all Securityholders of that series, at their addresses shown on the Security
Register, notice of all such defaults known to the Trustee, unless such defaults
shall have been cured or waived before the giving of such notice (the term
"default" for the purpose of this Section 5.08 being hereby defined to mean any
event which constitutes or after notice or lapse of time or both would
constitute an Event of Default); and provided that, except in the case of
default in the payment of the principal of or any premium or interest on any of
the Securities of that series or in the making of any sinking fund payment or
analogous obligation with respect to Securities of that 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 Securityholders of that
series.
Section 5.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Security or coupon by his acceptance thereof shall
be deemed to have agreed, that any court in its discretion may 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 or omitted by it as Trustee, the
filing by any party
31
<PAGE>
litigant in such suit of an undertaking to pay the costs of such suit and that
such court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant; provided, however, that the
provisions of this Section 5.09 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of that series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or any
premium or interest on any Security on or after the respective Stated Maturities
(or, in the case of redemption or repayment, on or after the redemption date or
repayment date).
ARTICLE VI.
CONCERNING THE TRUSTEE
Section 6.01. Duties and Responsibilities of Trustee. In case an Event of
Default has occurred (which has not been cured or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
its own willful misconduct or any action or failure to act taken or omitted by
it in bad faith, except that:
(a) except during the continuance of an Event of Default:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but, in the case of any such
certificates or opinions that by any provisions of this Indenture are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less than a majority in principal amount of the
Securities of any series at the time Outstanding (determined as provided in
Section 7.04) relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture.
32
<PAGE>
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not 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 6.01.
The provisions of this Section 6.01 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act.
Section 6.02. Reliance on Documents, Opinions, etc. Subject to the
applicable provisions of the Trust Indenture Act and in furtherance thereof and
subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture 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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or omitted by it under this Indenture in good faith and in
accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(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, consent, order, approval,
bond, debenture, coupon 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 and records of the Company to the extent reasonably necessary to
verify such facts or matters; and
33
<PAGE>
(g) the Trustee may execute any of the trusts or powers under this
Indenture or perform any duties under this Indenture 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
by it with due care under this Indenture.
Section 6.03. No Responsibility for Recitals, etc. The recitals contained
in this Indenture and in the Securities (except in the Trustee's certificate of
authentication) and in any coupons shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities or the coupons. The Trustee shall not be
accountable for the use or application by the Company of any Securities or the
proceeds of any Securities authenticated and delivered by the Trustee.
Section 6.04. Trustee, Paying Agents or Registrar May Own Securities.
Subject to the applicable provisions of the Trust Indenture Act, the Trustee or
any Paying Agent or Security registrar, in its individual or any other capacity,
may become the owner or pledgee of Securities with the same rights it would have
if it were not Trustee, Paying Agent or Security registrar.
Section 6.05. Money to be Held in Trust. Subject to the provisions of
Sections 14.03 and 14.04, all money received by the Trustee, until used or
applied as herein provided, shall be held in trust for the purposes for which it
was received. Money held by the Trustee need not be segregated from other funds
except as provided by law. The Trustee shall be under no liability for interest
on any money received by it under this Indenture, provided that the Trustee pays
to the Persons entitled thereto all such money when due and payable.
Section 6.06. Compensation and Expenses of Trustee. The Company will pay to
the Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it under this Indenture (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may be attributable to its
negligence, bad faith or willful misconduct. The Company also covenants to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence, bad faith or willful misconduct on the
part of the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability in connection with the exercise
or performance of any of its powers under this Indenture. The obligations of the
Company under this Section 6.06 shall constitute additional indebtedness under
this Indenture.
Section 6.07. Officers' Certificate as Evidence. Subject to the provisions
of Section 6.07, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action under this
Indenture, such matter (unless other evidence in respect thereof be herein
specifically prescribed), in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, may be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Trustee, and such
Officers' Certificate, in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, shall be full warrant to the Trustee for
any action taken or omitted by it under the provisions of this Indenture upon
the faith of such Officers' Certificate.
34
<PAGE>
Section 6.08. Eligibility of Trustee. The Trustee under this Indenture
shall at all times be a corporation organized and doing business under the laws
of the United States or any State thereof or of the District of Columbia (or a
corporation or other person permitted to act as Trustee by the Commission)
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 of
examination by Federal, State or District of Columbia 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 6.08, 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. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 6.08, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.09. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee under this Indenture.
Section 6.09. Resignation or Removal of Trustee.
(a) The Trustee may resign at any time by giving written notice of
such resignation to the Company, by mailing notice of such resignation to
the holders of Registered Securities at their addresses as they shall
appear on the Security Register, and, if any Bearer Securities are
Outstanding, by publishing notice of such resignation in a newspaper of
general circulation, in each place of payment for such Bearer Securities,
customarily published at least once a day for at least five days in each
calendar week.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months, or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.08 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or a public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee by written
instrument, executed by Company Order authorized by the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor Trustee (with written notice of such removal
mailed to the holders of Registered Securities at their address as they
shall appear on the Security Register), or, subject to the provisions of
Section 5.09, any Securityholder who has been a bona fide holder of a
Security of Securities for at least six months, on behalf of himself and
all others similarly situated, may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(c) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company promptly shall appoint
35
<PAGE>
a successor Trustee by a Company Order authorized by the Board of
Directors, one copy of which instrument shall be delivered to the retiring
Trustee and one copy to the successor Trustee. If, within one year after
such resignation, removal or incapability or the occurrence of such
vacancy, a successor Trustee shall be appointed by the holders of a
majority in principal amount of the Securities (voting as a single class)
at the time Outstanding by instrument or instruments delivered to the
Company and the retiring Trustee, the successor Trustee so appointed,
forthwith upon its acceptance of such appointment, shall become the
successor Trustee and supersede the successor Trustee appointed by the
Company. If no successor Trustee shall have been so appointed by the
Company or the Securityholders and accepted appointment in the manner
provided in Section 6.10 within 60 days after notice of the resignation or
removal of the Trustee is mailed to the Securityholders, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee, or any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months,
subject to the provisions of Section 5.09, on behalf of himself and all
others similarly situated, may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(d) The holders of a majority in aggregate principal amount of the
Securities (voting as a single class) at the time Outstanding at any time
may remove the Trustee.
(e) Any removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 6.09 shall become
effective upon acceptance of appointment by the successor Trustee as
provided in Section 6.10. Any resignation of the Trustee shall become
effective only upon the appointment of a successor Trustee and upon the
acceptance of appointment by the successor Trustee as provided in Section
6.10.
Section 6.10. Acceptance by Successor Trustee. Any successor Trustee
appointed as provided in Section 6.09 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment under this Indenture, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor under this Indenture,
with like effect as if originally named as Trustee in this Indenture; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act, upon payment of any amounts then due it pursuant to
the provisions of Section 6.06, shall execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act and shall transfer, assign and deliver to such successor all
property and money held by such predecessor Trustee under this Indenture. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
nevertheless shall retain a lien upon all property or funds held or collected by
such Trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
No successor Trustee shall accept appointment as provided in this Section
6.10 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 310(a) of the Trust Indenture Act and
eligible under the provisions of Section 6.08.
Upon acceptance of appointment by a successor trustee as provided in this
Section 6.10, the Company shall mail notice of the succession of such Trustee
under this Indenture to the holders of Registered Securities at their addresses
as they shall appear on the Security Register. If the Company fails to mail such
notice within ten days after acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be mailed at the expense of the
Company.
36
<PAGE>
Section 6.11. Succession by Merger, etc. 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 the corporate trust business of the Trustee, shall be the successor Trustee
under this Indenture without the execution or filing of any paper or any further
act on the part of any of the parties to this Indenture provided such
corporation shall be qualified under the provisions of Section 310(a) of the
Trust Indenture Act and eligible under the provisions of Section 6.08.
In case at the time such successor Trustee shall succeed to the trusts
created by this Indenture any of the Securities shall have been authenticated
but not delivered, any such successor Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor Trustee may authenticate such Securities
either in the name of any predecessor Trustee under this Indenture or in the
name of the successor Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
Section 7.01. Action by Securityholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any such other action), the fact that at the time of taking any
such action the holders of such specified percentage have joined in such action
may be evidenced (i) by any instrument or any number of instruments of similar
tenor executed by Securityholders in person or by agent or proxy appointed in
writing, (ii) by the record of the holders of Securities voting in favor of such
action at any meeting of Securityholders duly called and held in accordance with
the provisions of this Article Seven or (iii) by a combination of such
instrument or instruments and any such record of such a meeting of
Securityholders. The Company may set a record date for purposes of determining
the identity of holders entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture, which record date shall be
the later of ten days prior to the first solicitation of such consent or the
date of the most recent list of holders furnished to the Trustee pursuant to the
provisions of Section 312(a) of the Trust Indenture Act prior to such
solicitation. If a record date is fixed, those persons who were holders of
Securities at such record date (or their duly designated proxies), and only
those persons, shall be entitled to take such action by vote or consents or to
revoke any vote or consent previously given, whether or not such persons
continue to be holders after such record date. No such vote or consent shall be
valid or effective if such vote occurs or such consent is obtained more than 120
days after such record date.
Section 7.02. Proof of Execution by Securityholders.
(a) Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof
of the execution of any instrument by a Securityholder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as
shall be satisfactory to the Trustee.
37
<PAGE>
(b) The ownership of Registered Securities of any series shall be
proved by the Security Register or by a certificate of the Security
registrar of such series.
(c) 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 (i) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is
produced, (ii) such Bearer Security is produced to the Trustee by some
other Person, (iii) such Bearer Security is surrendered in exchange for a
Registered Security or (iv) such Bearer Security is no longer Outstanding.
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 7.02(c).
(d) The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.07.
Section 7.03. Who Are Deemed Absolute Owners. Prior to due presentation
of a Registered Security for registration of transfer, the Company, the Trustee,
any Paying Agent and any Security registrar may treat the Person in whose name
such Registered Security is registered as owner of such Registered Security for
the purpose of receiving payment of principal of and any premium and (subject to
Section 2.09) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security is overdue and
notwithstanding any notation of ownership or other writing on such Registered
Security made by anyone other than the Company or any Security registrar, and
neither the Company, the Trustee, any Paying Agent nor any Security registrar
shall be affected by any notice to the contrary. All such payments so made to
any such holder as shown in the Security Register, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for money payable upon any such Registered Security.
The Company, the Trustee, any Paying Agent and any Security registrar 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 is overdue, and neither the
Company, the Trustee, any Paying Agent nor any Security registrar shall be
affected by any notice to the contrary. All such payments so made to any such
bearer shall be valid and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for money payable upon any such Bearer
Security.
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.
38
<PAGE>
Section 7.04. Company Owned Securities Disregarded. In determining whether
the holders of the requisite aggregate principal amount of Securities have
concurred in any direction, consent, waiver or other action under this
Indenture, Securities that are owned by the Company or any other obliger on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obliger
on the Securities shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination; provided, however, that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Securities that the Trustee
knows are so owned shall be so disregarded.
Section 7.05. Revocation of Consents; Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities of any or all series specified in this
Indenture in connection with such action, any holder of a Security the serial
number of which is shown by the evidence to be included in the Securities the
holders of which have consented to such action, by filing written notice with
the Trustee as the principal office and upon proof of holding as provided in
Section 7.02, may revoke such action so far as concerns such Security. Except as
provided in this Section 7.05 any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, irrespective of whether or not any notation
in regard thereto is made upon such Security or any Security issued in exchange
or substitution for such Security.
ARTICLE VIII.
SECURITYHOLDERS' MEETINGS
Section 8.01. Purposes of Meetings. A meeting of Securityholders of any or
all series may be called at any time and from time to time pursuant to the
provisions of this Article VIII for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
under this Indenture and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to any of the provisions
of Article V;
(b) to remove the Trustee and nominate a successor Trustee pursuant
to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental to this Indenture pursuant to the provisions of Section 9.02;
or
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture or under applicable
law.
Section 8.02. Call of Meetings by Trustee. The Trustee at any time may call
a meeting of Securityholders of any or all series to take any action specified
in Section 8.01, to be held at such time and at such place in The City of New
York for Registered Securities and the City of London, England for Bearer
Securities, as the Trustee shall determine. Notice of every meeting of the
Securityholders,
39
<PAGE>
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 mailed to holders, if any,
of Registered Securities of each series affected at their addresses as they
shall appear on the Security Register, and shall be provided to holders, if any,
of Bearer Securities of each series affected by publication thereof in a
newspaper of general circulation, in each Place of Payment for each such series,
customarily published at least once a day for at least five days in each
calendar week. Such notice to holders of Registered Securities shall be mailed
not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Such notice to holders of Bearer Securities shall be made by the required
publication on at least two dates, the first such publication to be not more
than 90 days and the second such publication to be not less 20 days prior to the
date fixed for the meeting.
Any meeting of Securityholders shall be valid without notice if the holders
of all Securities then Outstanding of each series affected are present in person
or by proxy or if notice is waived before or after the meeting by the holders of
all Outstanding Securities of each series affected, and if the Company and the
Trustee are either present by duly authorized representatives or, before or
after the meeting, have waived notice.
Section 8.03. Call of Meetings by Company or Securityholders. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Securities then
Outstanding of any or all series, as the case may be, that may be affected by
the action proposed to be taken, shall have requested the Trustee to call a
meeting of Securityholders of any or all series, as the case may be, that may be
so affected, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed or
published (as appropriate under Section 8.02) the notice of such meeting within
20 days after receipt of such request, then the Company or such Securityholders
may determine the time and the place in the city designated in Section 8.02, as
the case may be, for such meeting and may call such meeting to take any action
authorized in Section 8.02, by mailing or publishing notice of such meeting as
provided in Section 8.02.
Section 8.04. Qualifications for Voting. To entitled to vote at any
meeting of Securityholders of any series a person shall (i) be a holder of one
or more Securities of such series as set forth in the Security Register for such
series or (ii) be a person appointed by an instrument in writing as proxy by a
holder of one or more Securities of such series, subject to the provisions of
Section 7.02. The only persons who shall be entitled to be present or to speak
at any meeting of Securityholders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 8.05. Regulations.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Securityholders, in regard to proof of the holding of
Securities 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 think fit.
(b) The Trustee, by an instrument in writing, shall appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Securityholders as provided in Section 8.03, in
which case the Company or the Securityholders calling the meeting, as the
case may be, in like manner shall appoint a temporary chairman. A
permanent chairman
40
<PAGE>
and a permanent secretary of the meeting shall be elected by vote of the
holders of a majority in principal amount of the Securities represented at
the meeting and entitled to vote.
(c) Subject to the provisions of Section 7.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000
principal amount of Securities.
(d) No vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by him or instruments
in writing duly designating him as the person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called pursuant to
the provisions of Section 8.02 or 8.03 may be adjourned from time to time
by a majority of those present and the meeting may be held as so adjourned
without further notice.
Section 8.06. Quorum. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities affected by the action proposed
to be taken shall constitute a quorum for a meeting of such Securityholders. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting, if convened at the request of holders of Securities, shall
be dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than ten days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than ten days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
8.02, except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities affected
by the action proposed to be taken which shall constitute a quorum.
Section 8.07. Voting. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities or of their
representatives by proxy and the principal amount of the Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any vote by ballot
taken at such meeting 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
such notice was mailed or published as provided in Section 8.02 or 8.03. The
record shall show the principal amount of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters started in such record.
Section 8.08. No Delay of Rights by Meeting. Nothing in this Article VIII
shall be deemed or construed to authorize or permit, by reason of any call of a
meeting of Securityholders or any rights expressly or impliedly conferred under
this Article Eight to make such call, any hindrance or delay in
41
<PAGE>
the exercise of any right or rights conferred upon or reserved to the Trustee or
to the Securityholders under any of the provisions of this Indenture or of the
Securities.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Securityholders.
The Company, when authorized by the resolutions of the Board of Directors, and
the Trustee from time to time and at any time may enter into an indenture or
indentures supplemental to this Indenture for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumptions by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article Ten;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of any series
of the Securities or coupons as the Board of Directors and the Trustee
shall consider to be for the protection of the holders of such Securities
or coupons, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions or conditions a
default or an Event of Default permitting, subject to Article III, the
enforcement of all or any of the several remedies set forth in this
Indenture; provided, however, that in respect of any such additional
covenant, restriction or condition such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or, subject to
Article III, may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained in this Indenture or in any supplemental indenture that may be
defective or inconsistent with any other provision contained in this
Indenture or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under this Indenture
that shall not adversely affect the interests of the holders of the
Securities or any related coupons;
(d) to establish the form or terms of Securities of any series as
permitted by Section 2.01;
(e) to add to, change or eliminate any of the provisions of this
Indenture to provided that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal or any premium on Registered Securities or of principal or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities or to permit or facilitate the
issuance of Securities in uncertificated form, provided any such action
shall not adversely affect the interests of the holders of Securities of
any series or any related coupons;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture; provided, however, that such action shall not adversely affect
the interests of the holders of the Securities of any series;
42
<PAGE>
(g) to provide for the documentation necessary for the issuance of
Securities outside the United States of America;
(h) to provide for the documentation necessary for the issuance of
Securities at an issue price lower than the principal amount thereof,
including to provide that upon the redemption or acceleration of the
Maturity thereof an amount less than the principal amount thereof shall
become due and payable and that such amount shall be used to determine the
relative voting rights of the holders thereof; or
(i) to conform the Indenture to the provisions of the Trust Indenture
Act as then in effect.
The Trustee hereby is authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations that may be contained in such supplemental indenture and to
accept the conveyance, transfer and assignment of any property under such
supplemental indenture, but the Trustee shall not be obligated to, but may in
its discretion, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time Outstanding, notwithstanding the
provisions of Section 9.02.
Section 9.02. Supplemental Indentures with Consent of Securityholders of a
Series. With the consent (evidenced as provided in Section 7.01) of the holders
of not less than a majority in aggregate principal amount of the Securities at
the time Outstanding of each series affected by such supplemental indenture or
indentures, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee from time to time and at any time may enter into an
indenture or indentures supplemental to this Indenture for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the holders of the
Securities of each such series; provided, however, that without the consent of
the holder of each Security affected thereby no such supplemental indenture
shall: (a) change the Stated Maturity of the principal of or any premium or any
installment of interest on, any Security, or reduce the principal amount of any
Security or any premium or interest on any Security, or reduce the amount of
principal payable upon acceleration of the Maturity of any Original issue
Discount Security, or change any Place of Payment where, or the coin or currency
in which, any Security or any premium or interest on any Security is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after its Stated Maturity, or make any change in Article III that adversely
affects the rights of any Securityholder; (b) reduce the percentage in principal
amount of Securities 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 under this Indenture and their consequences provided for in this
Indenture; or (c) modify the provisions of Section 5.01 providing for the
rescinding and annulment of a declaration accelerating the Maturity of the
Securities of any series, or any of the provisions of this Section 9.02 or
Section 5.07(b), except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived.
Upon request of the Company, accompanied by a copy of the resolutions of
the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders of such
series as aforesaid, the Trustee shall join with the Company in the execution of
such supplemental
43
<PAGE>
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obliged to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 9.03. Compliance with Trust Indenture Act: Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article IX shall comply with the Trust Indenture Act as then in effect.
Upon the execution of any supplemental indenture pursuant to the provisions of
this Article IX, this Indenture shall be and be deemed to be modified and
amended in accordance with such supplemental indenture and the respective
rights, limitation of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of the series of
Securities affected thereafter shall be determined, exercised and enforced under
this Indenture subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
Section 9.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article IX may bear a notation in form acceptable to the
Trustee as to any matter provided for in such supplemental indenture. If the
Company so shall determine, new securities of any series and any related coupons
so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange, as provided in Section 2.06, for the Outstanding
Securities of such series and any related coupons, upon surrender of such
Outstanding Securities of such series and any related coupons.
Section 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 6.01 and
6.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article IX complies with the requirements of this Article IX.
ARTICLE X.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 10.01. Company May Consolidate, etc., on Certain Terms. The
Company shall not consolidate with or merge into another corporation or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, unless:
(a) 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 State thereof or the District of Columbia
and expressly shall assume, by a supplemental indenture executed and
delivered to the Trustee in from satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on the
securities, according to their terms, and the performance of
44
<PAGE>
every covenant of this Indenture and in such series on the part of the
Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and supplemental
indenture comply with this Article X and that all conditions precedent
provided for in this Indenture relating to such transaction have been
complied with.
Section 10.02. Successor Corporation Substituted. Upon any consolidation
by the Company with or merger by the Company 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 10.01, 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 corporation had been
named as the Company in this Indenture, and thereafter, except in the case of a
lease, the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities of each series and any related
coupons.
Such successor corporation may cause to be signed, and may issue either in
its own name or in the name of the Company prior to such succession, any of or
all the Securities of each series of under this Indenture which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of upon the Company Order,
and subject to all the terms, conditions and limitations in this Indenture, the
Trustee shall authenticate and shall deliver any Securities that previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for that purpose. All the Securities so issued shall have in all respects the
same legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all such Securities had been issued at the date of the execution of this
Indenture.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article. Securities of any series that
are redeemable before their Stated Maturity shall be redeemable only in
accordance with their terms and (except as otherwise specified as contemplated
by Section 2.01 for Securities of any series) in accordance with this Article
XI, to the extent Article III does not prohibit such a redemption.
Section 11.02. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Company Order. In case
of any redemption at the election of the Company of less than all the Securities
of any series, the Company, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
shall notify the Trustee of such Redemption Date, of the tenor and terms of the
Securities of such series to be redeemed and of the principal amount of such
Securities to be redeemed. In the case of any redemption
45
<PAGE>
of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 11.03. Selection by Trustee of Securities to be Redeemed. If less
than all the Securities of any series of like tenor and terms specified by the
Company are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and of such 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 denominations for such Securities or
any integral multiple thereof) of the principal amount of such Registered
Securities or such Bearer Securities or a denomination larger than the minimum
authorized denomination for such Registered Securities or such Bearer
Securities.
The Trustee promptly shall notify the Company in writing of the Securities
selected for redemption and, in the case of any 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 Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 8.02 not less than 30 or more than 60 days
prior to the Redemption Date. All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after such date;
(e) the Place or Places of Payment where such 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;
(f) that Bearer Securities may be surrendered for payment only at such
place or places that are outside the United States, except as provided in
Section 4.02; and
(g) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of 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.
46
<PAGE>
Section 11.05. 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, segregate and hold in trust as
provided in Section 4.04) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be the same date as the
Stated Maturity of an installment of interest thereon) accrued interest on, all
the Securities that 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 4.02, unless otherwise specified as contemplated by Section 2.01.
Section 11.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall become due and payable, on the Redemption Date, 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
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 Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that: (i) 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 4.02); and (ii) installments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the holders of such
Securities, or one or more predecessor securities, registered as such at the
close of business on the relevant record date for the payment of such interest
according to the terms of such Securities.
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 is
furnished to them such security or indemnity as they may require to hold 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 on
account of such coupon 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 4.02.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or related coupon.
Section 11.07. Registered Securities Redeemed in Part. Any Registered
Security that is to be redeemed only in part shall be surrendered at a Place of
Payment therefor (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 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 Security without service
charge, a new Registered Security or new Registered Securities of the same
series and of like tenor and terms, of any authorized denomination as requested
by such holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
47
<PAGE>
ARTICLE XII.
SINKING FUNDS
Section 12.01. Applicability of Article. Subject to Section 3.02(b), the
provisions of this Article XII shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an Optional sinking
fund payment. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of the Securities of
such series.
Section 12.02. Satisfaction of Sinking Fund Payments with Securities. If
provided by the terms of Securities of any series, the Company
(a) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and
(b) may apply as a credit Securities of a series that have been
repurchased at the option of a holder or redeemed either at the election of
the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the
terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund, and the amount of such sinking fund payment shall be reduced
accordingly.
Section 12.03. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment of that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 12.02 and
also will deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.
48
<PAGE>
ARTICLE XIII.
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.01. Terms Set Forth in the Securities. Securities of any
series which are repayable at the option of the holders thereof before their
Stated Maturity shall be repaid in accordance with the terms set forth in such
Securities, to the extent Article III does not prohibit such a repayment.
ARTICLE XIV.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 14.01. Discharge of Indenture. When (a) the Company shall deliver
to the Trustee for cancellation all Securities of any series and any related
coupons theretofore authenticated (other than any Securities of such series and
any related coupons that shall have been mutilated, destroyed, lost or stolen
and in lieu of or in substitution for which other Securities or coupons shall
have been authenticated and delivered) and not theretofore cancelled, or (b) all
the Securities of any series and any related coupons not theretofore cancelled
or delivered to the Trustee for cancellation shall have become due and payable,
or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company shall deposit
(to the extent Article III does not prohibit such a deposit) with the Trustee,
in trust, funds (which thereupon shall become immediately due and payable to the
holders or Securities or coupons) sufficient to pay upon Stated Maturity,
redemption or repayment at the option of a holder all the Securities of such
series and related coupons (other than any Securities of such series and related
coupons that shall have been mutilated, destroyed, lost or stolen and that have
been replaced or paid as provided in Section 2.06) not theretofore cancelled or
delivered to the Trustee for cancellation, including principal and any premium
and interest due or to become due prior to such Stated Maturity, Redemption Date
or date of repayment, as the case may be, but excluding, however, the amount of
any money for the payment of principal of or any premium or interest on the
Securities
(a) theretofore deposited with the Trustee and repaid by the Trustee
to the Company in accordance with the provisions of Section 14.04, or
(b) paid to any State or the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the Company also
shall pay or cause to be paid all other sums payable under this Indenture
by the Company
then this Indenture shall cease to be of further effect with respect to
Securities of such series and any related coupons, and the Trustee, on demand of
the Company accompanied by an Officers' Certificate and an Opinion of Counsel as
required by Section 16.05 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to Securities of such series and any related coupons.
The obligations of the Company to the Trustee under Section 6.06 shall survive
the termination of this Indenture.
The Trustee shall notify the Securityholders of such series, at the expense
of the Company, of the immediate availability of the amount referred to in
clause (b) of this Section 14.01 by mailing a notice, first class postage
prepaid, to the holders of Securities of such series at their addresses as they
appear on the Security Register.
49
<PAGE>
Section 14.02. Deposited Money to be Held in Trust by Trustee. Subject to
Article III and to Section 14.04, all money deposited with the Trustee pursuant
to Section 14.01 shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company if acting as its own
Paying Agent, other than as to Bearer Securities, except as provided in Section
4.02), to the holders of the particular Securities and related coupons for the
payment of which such money has been deposited with the Trustee, of all sums due
and to become due thereon for principal and any premium and interest.
Section 14.03. Paying Agent to Repay Money Held. Upon the satisfaction
and discharge of this Indenture all money then held by any Paying Agent of the
Securities (other than the Trustee), upon demand of the Company, shall be repaid
to it or paid to the Trustee, and thereupon such Paying Agent shall be released
from all further liability with respect to such money.
Section 14.04. Return of Unclaimed Money. Any money deposited with or
paid to the Trustee or any Paying Agent for payment of the principal of or any
premium or interest on Securities of any series, or then held by the Company in
trust for the payment of the principal of or any premium or interest on
Securities of any series, and not applied but remaining unclaimed by the holders
of Securities of that series for two years after the date upon which the
principal or any premium or interest on such Securities, as the case may be,
shall have become due and payable, shall be repaid to the Company by the Trustee
on demand or, if then held by the Company, shall be discharged from such trust,
and all liability of the Trustee thereupon shall cease; and the holder of any of
such Securities thereafter, as an unsecured general creditor, shall look only to
the Company for payment of such Securities, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
at the expense of the Company, in the case of Registered Securities or Bearer
Securities, may cause to be published once, in a newspaper of general
circulation in each Place of Payment for such series customarily published on
each Business Day (whether or not published on Saturdays, Sundays or holidays)
or, in the case of Registered Securities, mail to each such holder, or both in
the case of Registered Securities, notice that such money remains unclaimed and
that, after a date specified in such notice, 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 14.05. Deposits Irrevocable. Any deposits with the Trustee
referred to in Section 14.01 shall be irrevocable. If any Securities of a
series with respect to which a deposit has been made pursuant to Section 14.01
at the time Outstanding 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 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.
Section 14.06. Reinstatement. If the Trustee is unable to apply any money
in accordance with Section 14.01 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 14.01 until such time as the
Trustee is permitted to apply all such money in accordance with Section 14.01.
50
<PAGE>
ARTICLE XV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 15.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or any premium or interest on any
Security, or for any claim based on any Security or coupon or otherwise in
respect of any Security or coupon, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any Security, or
because of the creation of any indebtedness represented by any Security or
coupon, shall be had against any incorporator, stockholder, officer or director,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities and coupons.
ARTICLE XVI.
MISCELLANEOUS PROVISIONS
Section 16.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements contained in this Indenture by
the Company shall bind its successors and assigns whether so expressed or not.
Section 16.02. Official Acts by Successor Corporation. Any act or
proceeding by any provisions of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
Section 16.03. Addresses for Notices, etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Securities on the Company may be given or
served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) to Mercantile Bancorporation Inc., Attention: Treasurer, P.O.
Box 524 St. Louis, Missouri 63166-0524, with a copy to it at P.O. Box 524, St.
Louis, Missouri 63166-0524, Attention: General Counsel. Any notice, direction,
request or demand by any Securityholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing at the principal office of the Trustee, Attention: Corporate Trust
Administration.
Section 16.04. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 16.05. Evidence of Compliance with Conditions Precedent. Upon any
application or request by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
51
<PAGE>
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 have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture (other than certificates provided pursuant to Section 4.04,
which certificates shall comply with the requirements of Section 4.04) shall
include: (i) a statement that the person making such certificate or opinion has
read such covenant or condition; (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinion
contained in such certificate or opinion are based; (iii) a statement that, in
the opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
The provisions of this Section 16.05 are in furtherance of and subject to
Sections 314(c)(1), 314(c)(2) and 314(e) of the Trust Indenture Act.
Section 16.06. Legal Holidays. Unless otherwise specified in the manner
contemplated by Section 2.01, in any case where the Stated Maturity of principal
of or any premium or interest on the Securities will not be a Business Day,
payment of such principal, premium or interest need not be made on such date but
may be made on the nest following Business Day with the same force and effect as
if made on the Stated Maturity and, if such principal, premium or interest is
duly paid on such next following Business Day, no interest shall accrue for the
period from and after such Stated Maturity to such next following Business Day.
Section 16.07. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any
provision of the Trust Indenture Act, such required provision shall control. If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
Section 16.08. No Security Interest Created. Nothing in this Indenture or
in the Securities or coupons, express or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction
where property of the Company or its Subsidiaries is located.
Section 16.09. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any person, other than
the parties to this Indenture, any Paying Agent, any Security registrar and
their successors under this Indenture, the holders of Securities or coupons and,
to the extent provided in this Indenture, the holders of Senior Indebtedness,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 16.10. Payments to be Made in U.S. Dollars. Notwithstanding
anything in this Indenture to the contrary, any payments on or relating to any
Security or related coupon shall be made only in U.S. dollars.
Section 16.11. Table of Contents Headings, etc. The table of contents and
the titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions of
this Indenture.
52
<PAGE>
Section 16.12. Execution in Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
----------------------------------------
______________________________ hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions set forth above in this
Indenture.
IN WITNESS WHEREOF, MERCANTILE BANCORPORATION INC. has caused this
Indenture to be signed and acknowledged by its ________________________________
_________________________________________, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary, and ___________________
__________________________________ has caused this Indenture to be signed and
acknowledged by ________________________________________, and has caused its
corporate seal to be affixed hereunto and the same to be attested by
________________________________________, as of the day and year first written
above.
MERCANTILE BANCORPORATION INC.
By:
-------------------------------
[Name]
[Title]
[SEAL]
Attest:
- -------------------------
Secretary
-----------------------------------
By:
-------------------------------
[Name]
[Title]
[SEAL]
Attest:
- -------------------------
Title:
53
<PAGE>
STATE OF )
) ss.
COUNTY OF )
On the _____ day of ____________________, 199_____, before me
personally came ____________________, to me known, who, being by me duly sworn
did depose and say that he resides at ________________________________________
____________________________________________________________; that he is the
_________________________ of Mercantile Bancorporation Inc., one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by the authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
-----------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.;
COUNTY OF )
On the _____ day of ____________________, 199_____, before me
personally came ________________________________________, to me known, who,
being by me duly sworn did depose and say that he resides at _________________
__________________________________________________; that he is a _____________
________________________________________ of __________________________, one of
the corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by the authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
-----------------------------------------
Notary Public
[NOTARIAL SEAL]
54
<PAGE>
Exhibit 5.1
[letterhead of Thompson Coburn]
April 23, 1997
Mercantile Bancorporation Inc.
P.O. Box 524
St. Louis, Missouri 63166-0524
Re: Registration Statement on Form S-3 - $500,000,000 in
Aggregate Principal Amount of Mercantile Bancorporation Inc.
Debt Securities
------------------------------------------------------------
Gentlemen:
With reference to the Registration Statement on Form S-3 (the
"Registration Statement") to be filed by Mercantile Bancorporation Inc., a
Missouri corporation (the "Company"), on April 23, 1997 with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, pertaining to
the proposed issuance by the Company of up to $500,000,000 in principal amount
of the Company's Debt Securities (the "Debt Securities"), as provided in the
Registration Statement, we have examined such corporate records of the Company,
such laws and such other information as we have deemed relevant, including the
Company's Restated Articles of Incorporation, Bylaws, resolutions adopted by the
Board of Directors relating to such issuance, certificates received from state
officials and statements we have received from officers and representatives of
the Company. In delivering this opinion, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as certified,
photostatic or conformed copies, the authenticity of originals of all such
latter documents, and the correctness of statements submitted to us by officers
and representatives of the Company.
Based solely on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and is validly existing under
the laws of the State of Missouri; and
2. The Debt Securities to be issued by the Company pursuant to the
Registration Statement have been duly authorized and, when the relevant
indenture for the particular type of Debt Securities has been duly executed and
delivered by the Company and the trustee under the indenture and when the Debt
Securities have been duly executed by the Company and authenticated by the
trustee under the indenture and delivered to the underwriters against payment of
the purchase price therefore in accordance with the underwriting agreement will
be the legal, valid and binding obligations of the Company, except as may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws relating to creditors' rights generally, and that
the remedies available may be subject to general principles of equity.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this opinion in the section of
the Prospectus entitled "Legal Matters." We further consent to the filing of
copies of this opinion with agencies of such states and other jurisdictions as
you deem necessary in the course of complying with the laws
<PAGE>
Mercantile Bancorporation Inc.
April 23, 1997
Page 2
of the states and jurisdictions regarding the sale and issuance of the Debt
Securities in accordance with the Registration Statement.
Very truly yours,
/s/ Thompson Coburn
<PAGE>
EXHIBIT 12.1
MERCANTILE BANCORPORATION INC.
Ratio of Earnings to Fixed Charges
(dollars in thousands)
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------------------------------
1996 1995 1994 1993 1992
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Earnings:
Earnings before income taxes............. $290,036 $356,785 $305,239 $261,143 $205,425
Junior subordinated debt expense......... 9,750 9,750 9,750 9,750 9,750
Interest on deposits..................... 514,764 495,863 374,031 393,842 495,307
Interest on indebtedness................. 108,228 124,671 76,919 50,731 54,335
Rental expense........................... 8,979 8,752 8,435 8,751 8,603
One-third of rental expense.............. 2,993 2,917 2,812 2,917 2,868
Ratio of Earnings to Fixed Charges (1):
Excluding Interest on Deposits........... 3.40 x 3.60 x 4.41 x 5.12 x 4.07 x
Including Interest on Deposits........... 1.46 x 1.56 x 1.66 x 1.57 x 1.37 x
</TABLE>
- -------------------
(1) For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of earnings before income taxes plus interest and one-
third of rental expense. Fixed charges, excluding interest on deposits,
consists of interest on indebtedness and one-third of rental expense (which
is deemed representative of the interest factor). Fixed charges, including
interest on deposits, consists of both the foregoing items plus interest on
deposits.
<PAGE>
EXHIBIT 23.2
Independent Auditors' Consent
The Board of Directors and Stockholders
Mercantile Bancorporation Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
St. Louis, Missouri
April 23, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" and to the
use of our report dated January 15, 1997, with respect to the consolidated
financial statements of Mark Twain Bancshares, Inc. incorporated by reference in
the Registration Statement (Form S-3) and related Prospectus of Mercantile
Bancorporation Inc. for the registration of $500,000,000 Debt Securities of
Mercantile Bancorporation Inc.
April 21, 1997
St. Louis, Missouri
<PAGE>
EXHIBIT 23.4
Independent Auditors' Consent
The Board of Directors and Stockholders
Roosevelt Financial Group, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
St. Louis, Missouri
April 23, 1997
