<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 2, 1994
NATIONAL CITY CORPORATION
- -------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
DELAWARE
- -------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation)
[S] [C]
1-10074 34-1111088
- ---------------------------------- ----------------------------------------
(Commission File Number) (I.R.S. Employer Identification No.)
NATIONAL CITY CENTER
1900 EAST NINTH STREET
CLEVELAND, OHIO 44114-3484
- -------------------------------------------------------------------------------
(Address of Principal Executive Office) (Zip Code)
(216) 575-2126
- -------------------------------------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
<PAGE> 2
ITEM 5. OTHER EVENTS
Registrant is submitting the exhibits hereto for filing as anticipated in
the Prospectus dated February 23, 1994 and Prospectus Supplement in connection
therewith, both as included in Registrant's Registration Statement on Form S-3
(File No. 33-39480).
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED: None.
b) PRO FORMA FINANCIAL INFORMATION: None.
c) EXHIBITS:
4.2 Subordinated Indenture, dated as of Feburary 1, 1994, by and
between the Registrant and NBD Bank, National Association, as Trustee.
4.3 Form of 6-5/8% Subordinated Note Due 2004.
8.1 Opinion of Jones, Day, Reavis & Pogue as to tax matters.
12.1 Computation of Ratio of Earnings to Fixed Charges.
24.2 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 8.1).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NATIONAL CITY CORPORATION
By: _______________________
Robert G. Siefers
Executive Vice President
and Chief Financial Officer
DATE: March 2, 1994
- 2 -
<PAGE> 3
<TABLE>
EXHIBIT INDEX
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- -------- -------------------------------------------------------------
<S> <C>
4.2 Subordinated Indenture, dated as of February 1, 1994, by and
between the Registrant and NBD Bank, National Association,
as Trustee.
4.3 Form of 6-5/8% Subordinated Note Due 2004.
8.1 Opinion of Jones, Day, Reavis & Pogue as to tax matters.
12.1 Computation of Ratio of Earnings to Fixed Charges.
24.2 Consent of Jones, Day, Reavis & Pogue (included in Exhibit
8.1).
</TABLE>
<PAGE> 1
EXHIBIT 4.2
________________________________________________________________________________
NATIONAL CITY CORPORATION,
Issuer
to
NBD BANK, NATIONAL ASSOCIATION,
Trustee
_______________
SUBORDINATED INDENTURE
_______________
Dated as of February 1, 1994
Subordinated Debt Securities
________________________________________________________________________________
<PAGE> 2
NATIONAL CITY CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939, as AMENDED, AND
SUBORDINATED INDENTURE, DATED AS OF FEBRUARY 1, 1994
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -----------------
<S> <C>
# 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
# 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
# 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
# 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
# 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
# 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
# 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
# 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
# 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
- -----------------
</TABLE>
2
<PAGE> 3
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Subordinated Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<TABLE>
<S> <C> <C>
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Constituent Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Convertible Security or Convertible
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Date of Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dollars or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Independent Public Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legal Holiday . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
i
<PAGE> 5
<TABLE>
<S> <C> <C>
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Principal Constituent Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security or Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar . . . . . . . . . . . . . . . . . . . . . 10
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Depository or Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . 12
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . 12
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . 16
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 107. Language of Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 108. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . 18
Section 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
ARTICLE TWO
SECURITIES FORMS
<TABLE>
<S> <C> <C>
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
ii
<PAGE> 6
ARTICLE THREE
THE SECURITIES
<TABLE>
<S> <C> <C>
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . 22
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 305. Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
</TABLE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<TABLE>
<S> <C> <C>
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . 39
Section 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
ARTICLE FIVE
REMEDIES
<TABLE>
<S> <C> <C>
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 505. Trustee May Enforce Claims without
Possession of Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . . 45
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 508. Unconditional Right of Holders to
Receive Principal, Premium, Interest
and Additional Amounts and to Convert
any Convertible Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . 49
</TABLE>
iii
<PAGE> 7
ARTICLE SIX
THE TRUSTEE
<TABLE>
<S> <C> <C>
Section 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 603. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 604. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 606. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 607. Corporate Trustee Required; Eligibility;
Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 608. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 609. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . 55
Section 610. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 611. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . 57
</TABLE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
<TABLE>
<S> <C> <C>
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
</TABLE>
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
<TABLE>
<S> <C> <C>
Section 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 802. Successor Corporation Substituted for
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
ARTICLE NINE
<TABLE>
<S> <C> <C>
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 901. Supplemental Indentures without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 67
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 67
</TABLE>
iv
<PAGE> 8
<TABLE>
<S> <C> <C>
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 907. Subordination Unimpaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
</TABLE>
ARTICLE TEN
COVENANTS
<TABLE>
<S> <C> <C>
Section 1001. Payment of Principal, Premium, if any,
and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 1004. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1005. Statement as to Compliance;
Notice of Certain Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 1006. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 1007. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
</TABLE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<TABLE>
<S> <C> <C>
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1103. Selection by Trustee of Securities to be
Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 1108. Conversion Arrangements on Call
for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
</TABLE>
ARTICLE TWELVE
SINKING FUNDS
<TABLE>
<S> <C> <C>
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
</TABLE>
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
<TABLE>
<S> <C> <C>
Section 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
</TABLE>
v
<PAGE> 9
ARTICLE FOURTEEN
MEETINGS OF HOLDERS
<TABLE>
<S> <C> <C>
Section 1401. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . 84
Section 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 1405. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 1406. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
</TABLE>
ARTICLE FIFTEEN
SUBORDINATION
<TABLE>
<S> <C> <C>
Section 1501. Securities Subordinated to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 1502. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 1503. Obligation of Company Unconditional . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 1504. Payments on Securities Permitted . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 1505. Effectuation of Subordination by Trustee . . . . . . . . . . . . . . . . . . . . . 91
Section 1506. Knowledge of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 1507. Trustee's Relation to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 91
Section 1508. Rights of Holders of Senior
Indebtedness Not Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
</TABLE>
ARTICLE SIXTEEN
CONVERSION
<TABLE>
<S> <C> <C>
Section 1601. Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 1602. Manner of Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . 92
Section 1603. Cash Adjustment Upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 1604. Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 1605. Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 1606. Effect of Reclassifications, Consolidations,
Mergers or Sales on Conversion Privilege . . . . . . . . . . . . . . . . . . . . 98
Section 1607. Taxes on Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 1608. Company to Reserve Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 1609. Disclaimer by Trustee of Responsibility
for Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 1610. Company to Give Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . 100
</TABLE>
vi
<PAGE> 10
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
<TABLE>
<S> <C>
Section 1701. Securities in Foreign Currencies . . . . . . . . . . . . . . . . . . . . . . . . . 101
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
</TABLE>
vii
<PAGE> 11
SUBORDINATED INDENTURE, dated as of February 1, 1994 (the "Indenture"),
among NATIONAL CITY CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (hereinafter called the "Company"),
having its principal office at 1900 East Ninth Street, Cleveland, Ohio 44114,
and NBD BANK, NATIONAL ASSOCIATION, a national banking association, having its
principal office at 611 Woodward Avenue, Detroit, Michigan 48226, as Trustee
(hereinafter called the "Trustee").
RECITALS
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 (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided.
The Company has duly authorized the execution and delivery of this
Indenture and all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof or Coupons appertaining to any Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
1
<PAGE> 12
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"ACT", when used with respect to any Holders, has the meaning specified
in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
2
<PAGE> 13
"AUTHORIZED NEWSPAPER" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Legal Holidays, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may
be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"BANK" means (i) any institution organized under the laws of the United
States, any State of the United States, the District of Columbia, any territory
of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands
which (a) accepts deposits that the depositor has a legal right to withdraw on
demand, and (b) engages in the business of making commercial loans and (ii) any
trust company organized under any of the foregoing laws.
"BEARER SECURITY" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"BOARD OF DIRECTORS" means the board of directors of the Company or any
committee of that board duly authorized to act for the Company hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", except as may otherwise be provided herein or in any
Security, with respect to any Place of Payment or other location means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a Legal Holiday in
that Place of Payment or other location.
"CAPITAL STOCK" means, as to shares of a particular corporation,
outstanding shares of stock of any class whether now or hereafter authorized,
irrespective of whether such class shall be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation,
dissolution or winding up of such corporation.
"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
3
<PAGE> 14
of this Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"COMMON STOCK" means all shares now or hereafter authorized of the
class of common stock of the Company presently authorized and stock of any
other class into which such shares may hereafter have been changed.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation, and any other obligor upon the
Securities.
"COMPANY REQUEST" and "COMPANY ORDER" mean a written request or order,
as the case may be, signed in the name of the Company by the Chairman of the
Board of Directors, a Deputy Chairman, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"CONSTITUENT BANK" means any Subsidiary which is a Bank.
"CONVERTIBLE SECURITY" or "CONVERTIBLE SECURITIES" means any Security
or Securities, as the case may be, which are by their terms convertible into
Common Stock.
"CONVERSION PRICE" means the price per share of Common Stock from time
to time in effect at which any Convertible Security may be converted into
Common Stock as determined by or pursuant to the terms of this Indenture.
"CORPORATE TRUST OFFICE" 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 original execution of this Indenture
is its Corporate and Municipal Trust Services office located at 611 Woodward
Avenue, Detroit, Michigan 48226, Attention: Corporate Trust Administration.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
4
<PAGE> 15
"DATE OF CONVERSION" with respect to any Convertible Security or
portion thereof to be converted, means the date on which such Convertible
Security shall be surrendered for conversion and notice given in accordance
with the provisions of Article Sixteen.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLARS" or "$" means a dollar or other equivalent unit in the
currency of the United States, except as may otherwise be provided herein or in
any Security.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"GOVERNMENT OBLIGATIONS", with respect to any Securities unless
otherwise specified herein or therein, means (i) direct obligations of the
United States of America or the government or governments which issued the
currency, currency unit or composite currency in which any Securities are
payable, 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 or such government or
governments which issued the currency, currency unit or composite currency in
which such Securities are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America or such other government or governments, which, in either case, are not
callable or redeemable at the option of the issuer or issuers thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"HOLDER", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the
case of any Bearer Security, means the bearer thereof and, in the case of any
Coupon, means the bearer thereof.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or
5
<PAGE> 16
amended by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof, and with respect to any Security shall
include the terms of such Securities established as contemplated by Section
301; PROVIDED, HOWEVER, that, if at any time more than one Person is acting as
Trustee under this instrument, "INDENTURE" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"INDEPENDENT PUBLIC ACCOUNTANTS" means accountants or a firm of
accountants that are independent public accountants with respect to the Company
within the meaning of the Securities Act of 1933, as amended, and the rules
and regulations promulgated by the Commission thereunder who may be the
independent public accountants regularly retained by the Company or who may be
other independent public accountants. Such accountants or firm shall be
entitled to rely upon any Opinion of Counsel as to the interpretation of any
legal matters relating to the Indenture or certificates required to be provided
hereunder.
"INTEREST", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, with respect to any Security which provides for the payment of
Additional Amounts pursuant to Section 1004, includes such Additional Amounts.
"INTEREST PAYMENT DATE", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"LEGAL HOLIDAY", except as otherwise may be provided herein or in any
Securities, with respect to any Place of Payment or other location, means a
Saturday, a Sunday or a day on which banking institutions or trust companies in
such Place of Payment or other location are not authorized or obligated to be
open.
"MATURITY", with respect to any Security, means the date on which the
principal of such Security or an installment of
6
<PAGE> 17
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, notice of redemption, notice
of option to elect repayment or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, a Deputy Chairman, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL", except as otherwise provided herein or in any
Security, means a written opinion of counsel, who may be an employee of or
counsel for the Company or other counsel who shall be reasonably acceptable to
the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal thereof to be due and payable upon acceleration pursuant to Section
502.
"OUTSTANDING", with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
(ii) Securities, or portions thereof for whose payment or
redemption or repayment at the option of the Holder money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any Coupons appertaining
thereto, PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this
7
<PAGE> 18
Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Convertible Securities converted into Common Stock in
accordance with Article Sixteen hereof;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes and for purposes of
making the calculations required by Section 313 of the Trust Indenture Act, (i)
the principal amount of an Original Issue Discount Security that may be counted
in making such determination or calculation and that shall be deemed to be
Outstanding for such purposes shall be equal to the amount of the principal
thereof that pursuant to the terms of such Original Issue Discount Security
would be declared (or shall have been declared to be) due and payable upon a
declaration of acceleration pursuant to Section 502 at the time of such
determination or calculation, and (ii) the principal amount of any Security
denominated other than in Dollars that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined by the Company as
of the date such Security is originally issued by the Company, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (i) above) of such Security, and (iii) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making any such calculation or relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or
such other obligor.
8
<PAGE> 19
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Security or Coupon on
behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", with respect to any Security, means the place or
places where the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified in or pursuant to Section
301(9) or Section 1002.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
lost, destroyed, mutilated or stolen Security or any Security to which a
mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same debt as the lost, destroyed, mutilated or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen Coupon appertains.
"PRINCIPAL CONSTITUENT BANK" means any Constituent Bank the
consolidated assets of which as set forth in the most recent statement of
condition of such Bank constitute 15% or more of the Company's consolidated
assets as determined from the most recent quarterly balance sheet of the
Company.
"REDEMPTION DATE", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to the provisions of this Indenture.
"REGISTERED SECURITY" means any Security established pursuant to
Section 201 which is registered and the transfer or exchange thereof is
registrable in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in such Security as the "Regular Record Date".
9
<PAGE> 20
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer of the Trustee in its Corporate Trust Office and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"SECURITY" or "SECURITIES" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; PROVIDED,
HOWEVER, that if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities" with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means the principal of and premium, if any, and
interest on all indebtedness of the Company, whether outstanding at the date
hereof or thereafter incurred or created, except such indebtedness as is by its
terms expressly stated to be not superior in right of payment to the Securities
or to rank PARI PASSU or is identified in a Board Resolution or any indenture
supplemental hereto as not superior in right of payment or to rank PARI PASSU
with the Securities.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on any
registered Security means a date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", with respect to any Security or any installment of
principal thereof or 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 installment of principal
or interest is due and payable, as such date may be extended pursuant to
Section 308.
"SUBSIDIARY" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
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"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; PROVIDED, HOWEVER, that if at any time there
is more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of that series.
"UNITED STATES", except as otherwise provided herein or in any
Security, means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction.
"UNITED STATES ALIEN", except as otherwise provided herein or in any
Security, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"U.S. DEPOSITORY" or "DEPOSITORY" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository by the Company pursuant to Section 301, which
must be a clearing agency registered under the Securities Exchange Act of 1934,
as amended, and, if so provided pursuant to Section 301 with respect to any
Security, any successor to such Person. If at any time there is more than one
such Person, "U.S. Depository" or "Depository" shall mean, with respect to any
Securities, the qualifying entity which has been appointed with respect to such
Securities.
"VICE PRESIDENT", with respect to the Company or the Trustee, means any
vice president, whether or not designated by a number or a word or words added
before or after the title "Vice President".
"VOTING STOCK" means stock of a corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such corporation
provided that, for the purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
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Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents or any of them is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture and in any applicable
Security (except Sections 804(4) and 1005) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
and in any applicable Security relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such
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Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fourteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the
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holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1406.
Without limiting the generality of this Section 104, unless otherwise
established in or pursuant to a Board Resolution or set forth or determined in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, pursuant to Section 301, a Holder, including a U.S. Depository that is
a Holder of a global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made,
given or taken by Holders, and a U.S. Depository that is a Holder of a global
Security may provide its proxy or proxies to the beneficial owners of interests
in any such global Security through such U.S. Depository's standing
instructions and customary practices.
The Trustee shall fix a record date, which shall be not more than 30
days prior to the first solicitation of Holders, for the purpose of determining
the Persons who are beneficial owners of interest in any permanent global
Security held by a U.S. Depository entitled under the procedures of such U.S.
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice,
consent, waiver or other action, whether or not such Holders remain Holders
after such record date. No such request, demand, authorization, direction,
notice, consent, waiver or other action shall be valid or effective if made,
given or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the
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commencement and the date of termination of holding the same, shall be proved
by the Security Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
termination of holding the same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any Bank, banker or
other depositary reasonably acceptable to the Company, wherever situated, if
such certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of the Person holding
such Bearer Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The principal
amount and serial numbers of Bearer Securities held by the Person so executing
such instrument or writing and the date of the commencement and the date of
termination of holding the same may also be proved in any other manner which
the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at their option, by Board Resolutions, fix
in advance a record date, which shall be not more than 30 days prior to the
first solicitation of such Holders, for the determination of Holders of
Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of Registered Securities
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
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(f) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
Section 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Treasurer at
the address of its principal office specified in the first paragraph of
this Indenture or at any other address previously furnished in writing
to the Trustee by the Company.
Section 106. NOTICE TO HOLDERS; WAIVER.
Except as otherwise expressly provided herein or in any Security, where
this Indenture provides for notice to Holders of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such Notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City
of New York and, if
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such Securities are then listed on any stock exchange outside the
United States, in an Authorized Newspaper in such city as the Company
shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not
earlier than the earliest date and not later than the latest date
prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided.
In the case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice mailed
to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
Section 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
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Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed pursuant to Section 318(c) of the Trust Indenture Act, such imposed
duties shall control.
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder and the Holders of
Securities or Coupon, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 113. GOVERNING LAW.
This Indenture, the Securities and the Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in
said state.
Section 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security, or the last date on which a Holder has
the right to convert his Securities, shall be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture, any
Security or Coupon other than a provision in any Security or any Coupon that
specifically states that such provision shall apply in lieu of this Section)
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payment of interest or any Additional Amounts or principal (and premium, if
any) or conversion of the Securities need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, or on such last date for
conversion, and no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
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ARTICLE TWO
SECURITIES FORMS
Section 201. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and temporary global
Security issued pursuant to this Indenture shall be in the form established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, shall have appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Security,
as evidenced by their execution of such Security.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
NBD BANK, NATIONAL ASSOCIATION
as Trustee
By____________________________
Authorized Signatory
Section 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, any such
Security may provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed thereon and
may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any
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endorsement of any Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered pursuant to Section 303 or 304 with respect thereto. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in
the applicable Company Order. If a Company Order pursuant to Section 303 or
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, the Person or Persons specified
pursuant to Section 301.
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ARTICLE THREE
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
Fifteen.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, and set forth in
an Officers' Certificate, or established in one or more indentures supplemental
hereto,
(1) the title of the Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 or 1602 or the terms of such
Securities);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both and, if the Securities
are to be issuable exclusively or alternatively as Bearer Securities,
whether the Bearer Securities are to be issuable with Coupons, without
Coupons or both, and any restrictions applicable to the offer, sale,
delivery or conversion of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered Securities
and vice versa;
(4) whether any Securities of the series are to be issuable
initially or otherwise in global form and, if so, (i) whether
beneficial owners of interests in any such global Security may exchange
such interest for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner specified in
Section 305 (ii) the name of the depository or the U.S. Depository, as
the case may be, with respect to any global Security and (iii) the
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manner in which interest payable on a global security will be paid;
(5) the date as of which any Bearer Securities of the series and
any global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(6) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of an Interest
Payment Date prior to the exchange of such temporary Bearer Security
for definitive Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(7) the date or dates, or the method, if any, by which such date
or dates shall be determined, on which the principal of such Securities
is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method, if any, by which such rate or rates
are to be determined, the date or dates, if any, from which such
interest shall accrue or the method, if any, by which such date or
dates are to be determined, the Interest Payment Dates, if any, on
which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on Registered Securities on any Interest
Payment Date, whether and under what circumstances Additional Amounts
on such Securities or any of them shall be payable, and the basis upon
which interest shall be calculated if other than that of a 360-day year
of twelve 30-day months;
(9) the place or places, if any, in addition to or other than the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest (including Additional Amounts), if any,
on such Securities shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of
the series may
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be surrendered for exchange or conversion and notices or demands to or
upon the Company in respect of the Securities of the series and this
Indenture may be served;
(10) whether the Securities of the series or any of them are to be
redeemable at the option of the Company and, if so, the period or
periods within which, the price or prices at which and the other terms
and conditions upon which such Securities may be redeemed, in whole or
in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase
Securities of the series or any of them pursuant to any sinking fund or
at the option of any Holder thereof and, if so, the period or periods
within which, the price or prices at which and the other terms and
conditions upon which such Securities shall be redeemed or purchased,
in whole or in part, pursuant to such obligation, and any provisions
for the remarketing of the Securities of the series so redeemed or
purchased;
(12) whether Securities of the series are to be Convertible
Securities and, if so, the initial Conversion Price applicable thereto,
the period or periods within which the conversion privilege may be
exercised and any additions, deletions, modifications or variations to
the provisions of Article Sixteen hereof applicable thereto;
(13) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations of $1,000
and any integral multiple thereof, and the denominations in which
Bearer Securities of the series, if any, shall be issuable if other
than the denomination of $5,000;
(14) if other than the principal amount thereof, the portion of
the principal amount of the Securities of the series or any of them
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the method by which such portion is
to be determined;
(15) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
or private debts, the coin or currency, composite currencies or
currency
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unit or units in which payment of the principal of (and premium, if
any) or interest, if any, on or any Additional Amounts in respect of
the Securities of the series or any of them shall be payable;
(16) if the principal of (and premium, if any) or interest, if
any, on or any Additional Amounts in respect of the Securities of the
series or any of them are to be payable, at the election of the Company
or a Holder thereof, in a coin or currency, composite currencies or
currency unit or units other than that in which the Securities of the
series or any of them are stated to be payable, the period or periods
within which, and the terms and conditions upon which, such election
may be made;
(17) whether the amount of payments of principal of (and premium,
if any) or interest (including Additional Amounts), if any, on the
Securities of the series may be determined with reference to an index,
formula or other method (which index, formula or method may be based,
without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other indices),
and, if so, the terms and conditions upon which and the manner in which
such amounts shall be determined and paid or payable;
(18) whether the principal of (and premium, if any) or interest
(including Additional Amounts), if any, on the Securities of the series
are to be payable, at the election of the Company or any Holder thereof
or otherwise, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities or any of them are denominated or stated to be payable, the
period or periods within which, and the other terms and conditions upon
which, such election, if any, may be made, and the time and manner of
determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities or any of them are denominated or stated to be payable
and the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities or any of them are to
be so payable;
(19) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to the
Securities of the series or
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any of them, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(20) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(21) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent and/or Authenticating Agent with respect to the
Securities of the series; and
(22) whether any of the Securities of a series shall be issued as
Original Issue Discount Securities; and
(23) any other terms of the Securities of the series or any of
them (which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and Coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as
to denomination and the rate or rates of interest, if any, and Stated Maturity,
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to one or more Board Resolutions and
set forth in such Officers' Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. All Securities of
any one series need not be issued at the same time and, unless otherwise so
provided by the Company, a series may be reopened for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series were established by
action taken by or pursuant to a Board Resolution, the Board Resolution shall
be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
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Section 302. DENOMINATIONS.
Unless otherwise established with respect to any Securities pursuant to
Section 301, the Registered Securities of each series, if any, denominated in
Dollars shall be issuable in registered form without coupons in denominations
of $1,000 and any integral multiple thereof, and the Bearer Securities of each
series, if any, denominated in Dollars shall be issuable in the denomination of
$5,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities pursuant to
Section 301.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY
AND DATING.
The Securities and any Coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman of the Board, a Deputy Chairman, one
of its Vice Chairmen, its President or one of its Vice Presidents under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities and any Coupons appertaining thereto may be manual or facsimile.
Securities and Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any Coupons appertaining thereto, executed by the Company, to the Trustee for
authentication, and, provided that the Board Resolution or Resolutions and
Officers' Certificate or supplemental indenture or indentures with respect to
such Securities referred to in Section 301 and a Company Order for the
authentication and delivery of such Securities, has been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof of such Securities shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
Coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(b) of the Trust Indenture Act) shall be
fully protected in relying upon,
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(i) an Opinion of Counsel stating, to the effect
(a) that the form or forms and terms of such Securities and Coupons,
if any, have been established in conformity with the provisions of this
Indenture;
(b) that all conditions precedent to the authentication and delivery
of such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities, and Coupons, when completed by
appropriate insertion and executed and delivered by the Company to the
Trustee for authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute
legally valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws affecting the enforcement of creditors' rights generally, and subject
to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and will entitle the Holders thereof
to the benefits of the Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies;
(c) 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; and
(d) as to such other matters as the Trustee may reasonably request; and
(ii) an Officers' Certificate stating that, to the best knowledge of the
Persons executing such certificate, no Event of Default with respect to any of
the Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the
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Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee or if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date specified as contemplated by Section 301.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form
provided for in Section 202 or 611 executed by or on behalf of the Trustee by
the manual signature of one of its authorized officers, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder. Except as
permitted by Section 306 or 307, the Trustee shall not authenticate and deliver
any Bearer Security unless all appurtenant Coupons for interest then matured
have been detached and cancelled.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee and, upon Company Order the
Trustee shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form or, if authorized, in bearer form
with one or more Coupons or without Coupons and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. In the case of Securities of any
series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company shall cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of any Series, the temporary Securities of such series,
if any, shall be exchangeable upon request for definitive Securities of such
series containing identical terms and provisions upon surrender of the
temporary Securities of such series at an office or agency of the Company
maintained for such
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purpose pursuant to Section 1002, without charge to any Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured Coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations of
the same series containing identical terms and provisions; PROVIDED, HOWEVER,
that no definitive bearer security, except as provided pursuant to section 301,
shall be delivered in exchange for a temporary registered security; and
PROVIDED, FURTHER, that a definitive bearer security shall be delivered in
exchange for a temporary bearer security only in compliance with the conditions
set forth herein or therein. Unless otherwise specified as contemplated by
Section 301 with respect to a temporary global Security, until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
Section 305. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept, at an office or agency of the Company
maintained pursuant to Section 1002, a register (each such register being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of the Registered Securities of each series and of transfers
of the Registered Securities of such series. In the event that the Trustee
shall not be the Security Registrar, it shall have the right to examine the
Security Register at all reasonable times. National City Bank, Cleveland, Ohio
is hereby initially appointed as Security Registrar for each series of
Securities. In the event that National City Bank, Cleveland, Ohio shall cease
to be Security Registrar with respect to a series of Securities, it shall have
the right to examine the Security Register for such series at all reasonable
times.
Upon surrender for registration of transfer of any Registered Security
of any series at any office or agency of the Company maintained for that series
pursuant to Section 1002, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series of any
authorized denominations, of a like aggregate principal amount bearing a number
not contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of
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the same series containing identical terms and provisions, in any authorized
denominations, and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
If specified as contemplated by Section 301 with respect to Securities
of any series, at the option of the Holder, Bearer Securities of such series
may be exchanged for Registered Securities of such series containing identical
terms and provisions, of any authorized denominations and aggregate principal
amount, upon surrender of the Bearer Securities to be exchanged at any such
office or agency for such series, with all unmatured Coupons and all matured
Coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured Coupon or Coupons or matured Coupon or
Coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; PROVIDED,
HOWEVER, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an office or agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of such series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such
Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer Security,
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but will be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
If specified as contemplated by Section 301 with respect to Securities
of any series, at the option of the Holder, Registered Securities of such
series may be exchanged for Bearer Securities upon such terms and conditions as
may be provided pursuant hereto with respect to such series.
Whenever any Securities are so surrendered for exchange as contemplated
by the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any global Security of any series shall be
exchangeable for Securities of such series only if (i) the Securities
Depository is at any time unwilling or unable or ineligible to continue as
Securities Depository and a successor depository is not appointed by the
Company within 60 days of the date the Company is so notified in writing, (ii)
the Company executes and delivers to the Trustee a Company Order to the effect
that such global Security shall be so exchangeable, or (iii) an Event of
Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for Securities of such series and of like tenor and principal
amount of any authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such global Security shall be surrendered from time to
time by the U.S. Depository or such other depository as shall be specified in
the Company Order with respect thereto, and in accordance with instructions
given to the Trustee and the U.S. Depository or such other depository, as the
case may be (which instructions shall be in writing but need not comply with
Section 102 or be accompanied by an Opinion of Counsel), as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or in part, for definitive
Securities of the same series without charge. The Trustee shall authenticate
and make available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such
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global Security to be exchanged which (unless the Securities of such series are
not issuable both as Bearer Securities and as Registered Securities, in which
case the definitive Securities exchanged for the global Security shall be
issuable only in the form in which the Securities are issuable, as specified as
contemplated by Section 301) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities of such series to be redeemed and ending on the
relevant Redemption Date; and provided, further, that (unless otherwise
specified as contemplated by Section 301) no Bearer Security delivered in
exchange for a portion of a global Security shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part, such global Security shall be returned by the Trustee to such
Depository or the U.S. Depository, as the case may be, or such other Depository
or U.S. Depository referred to above in accordance with the instructions of
the Company referred to above. If a Registered Security is issued in exchange
for any portion of a global Security after the close of business at the office
or agency where such exchange occurs on (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such global Security
is payable in accordance with the provisions of this Indenture.
All Securities endorsed thereon issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the
Company evidencing the same debt, and entitling the Holders thereof to the same
benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange, redemption or conversion shall (if so required by the
Company or the Security Registrar for such series of Security presented) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and such Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer,
exchange, redemption or conversion 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 registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1602 not
involving any transfer.
Except as otherwise specified as contemplated by Section 301, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of
Securities of such series under Section 1103 and ending at the close of
business on the day of such selection, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed, or (iii) to exchange any Bearer Security so
selected for redemption except, to the extent provided with respect to such
Security, that such a Bearer Security may be exchanged for a Registered
Security of that series, provided that such Registered Security shall be
immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture, or (iv) to issue, register
the transfer of or exchange any Security which, in accordance with its terms
specified as contemplated by Section 301, has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to
be repaid.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security or Coupon has been acquired by
a bona fide purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver,
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in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
Coupon appertains with all appurtenant Coupons not destroyed, lost or stolen, a
new Security of the same series containing identical terms and of like
principal amount and bearing a number not contemporaneously outstanding, with
Coupons corresponding to the Coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or
stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case
any such mutilated, destroyed, lost or stolen Security or Coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of (and premium, if any) and any interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the Coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its Coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security and
its Coupons, if any, or the destroyed, lost or stolen Coupon shall constitute a
separate obligation of the Company, whether or not the destroyed, lost or
stolen Security and its Coupons, if any, or the destroyed, lost or stolen
Coupon shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their Coupons, if any.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.
Unless otherwise specified as contemplated by Section 301, interest on
any Registered Security which is payable, and is
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punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered as of 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 of such Bearer Security, but will be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Any interest on any Registered Security of any series which shall be
payable, but shall not be punctually paid or duly provided for, on any Interest
Payment Date for such Registered Security (herein called "Defaulted Interest")
shall forthwith 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
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities
affected (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 such Registered Security and the
date of the proposed payment, and at the same time the Company shall
deposit on or with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon, the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
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the Company of such Special Record Date and, in the name and at the
expense of the Company shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of such Registered
Securities at his address as it appears in the Security Register not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions
of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities of any
series that bear interest may be paid by mailing a check to the address of the
person entitled thereto as such address shall appear in the Security Register.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 305 and 307)
interest on or any Additional Amounts with respect to, such Registered
Security, for the purpose of conversion and for all other purposes whatsoever,
whether or not any payment with respect to such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof, for the purpose of conversion and for all other
purposes whatsoever, whether or not any payment with respect to such Security
or Coupon be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 309. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee
or the Security Registrar, be delivered to the Trustee or the Security
Registrar, and any such Securities and Coupons and Securities and Coupons
surrendered directly to the Trustee or the Security Registrar for any such
purpose shall be promptly cancelled by the Trustee or the Security Registrar,
as the case may be. The Company may at any time deliver to the Trustee or the
Security Registrar for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee or the Security Registrar, as the case may be. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture or as
otherwise specified as contemplated by Section 301. All cancelled Securities
and Coupons held by the Trustee or the Security Registrar shall be destroyed by
the Trustee or the Security Registrar, as the case may be, unless by a Company
Order the Company directs their return to it. The Trustee shall promptly
notify the Company of all cancelled Securities.
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Section 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order (except as to any surviving rights of
conversion, registration of transfer or exchange of Securities of such series
herein expressly provided for and any right to receive Additional Amounts, as
provided in Section 1004), and the Trustee, on receipt of a Company Order, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered for exchange
for Registered Securities of such series and maturing after such exchange,
whose surrender is not required or has been waived as provided in Section
305, (ii) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1107, and (iv) Securities and Coupons
of such series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any such Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose, lawful money of the United States, Government Obligations which
through the payment of interest and principal or other amounts in respect
thereof in accordance with their terms will provide not later than the
opening of business on the due dates of any payment of principal (and
premium, if any) and interest, or any Additional Amounts with respect
thereto, or a combination thereof, in an amount sufficient to pay and
discharge the entire indebtedness on such Securities and Coupons not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest, or any Additional Amounts with respect
thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as
to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money shall
have been deposited with the
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Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
Section 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 or 402 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities, the Coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and any interest or any Additional Amounts for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
All moneys deposited with the Trustee pursuant to Section 401 (and held by
it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or be effected by operation
of law pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) 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, are adjudging it a bankrupt or
insolvent 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
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(2) 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 any 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 Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related Coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal of all the Securities of that series, or such
lesser amount as may be provided for in the Securities of that series, to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such principal
or such lesser amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of not less than a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
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(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Securities of such series,
(B) the principal of (and premium, if any, on) any Securities of
such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne by or
provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest or any Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel as provided in Section 606 hereof; and
(2) all Events of Default with respect to Securities of such series
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts payable in respect of any Security when such
interest or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and Coupons, the whole amount then due and payable
on such Securities and any Coupons appertaining thereto for principal (and
premium, if any) and interest or Additional Amounts, if any, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest or any Additional Amounts, at the rate or rates borne by or provided
for in such Securities,
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and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities and
Coupons (if any), wherever situated.
If a default (as defined in Section 513) occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any Coupons appertaining
thereto by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or such Securities
or in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium, if any) and interest and any Additional Amounts
owing and unpaid in respect of the Securities and any coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee,
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its agents or counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or Coupons to make such payments to the Trustee or,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or Coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or Coupon in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or 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 Security or
Coupon in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any), interest or any Additional Amounts, upon presentation of the
Securities or Coupons, or both, as the case may be, and the
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notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and Coupons for principal (and premium, if any)
and interest or any Additional Amounts payable in respect of
which or for the benefit of which such money has been
collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on
such Securities and Coupons for principal (and premium, if
any), interest or any Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related Coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day
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period by the Holders of a majority in principal amount of the Outstanding
Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL, PREMIUM, INTEREST
AND ADDITIONAL AMOUNTS AND TO CONVERT
ANY CONVERTIBLE SECURITY.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on or any Additional Amounts in
respect of such Security or payment of such Coupon on the respective Stated
Maturity or Maturities specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and shall have the right to convert any such Security
which is a Convertible Security in accordance with the terms hereof and thereof
and to institute suit for enforcement of such right; and such rights shall not
be impaired without the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
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Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to
the extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to any Holders of a Security or a Coupon
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by such Holder, as the case may be.
Section 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of other
Holders of Securities of such series.
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Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto waive any past
default (as defined below) hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (and premium, if any) or
interest on or Additional Amounts payable in respect of any Security of such
series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
Section 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; PROVIDED, HOWEVER, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
on, or any Additional Amounts with respect to, any Security of such series or
in the payment of any sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Holders of
Securities and Coupons of such series.
Section 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Sections 315(a) through 315(d) of the
Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, or other paper or document reasonably believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (other than
delivery of any Security, together with any Coupons appertaining thereto to
the Trustee for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any resolution of
the Board of Directors may be sufficiently evidenced by a Board Resolution
or Board Resolutions;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be
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herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any Coupons
appertaining thereto pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 603. NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true
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and accurate, subject to the qualifications set forth therein. The Trustee or
any Authenticating Agent shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and Coupons and, subject to Sections 310(b) and 311 of
the Trust Indenture Act, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other Person.
Section 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law and shall be held
uninvested. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation for
all services rendered by it hereunder as shall be mutually agreed upon
by the Company and the Trustee (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable
to its negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the trust or trusts
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hereunder, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest on Securities. When the Trustee incurs expenses or renders
services after an Event of Default occurs, the expenses and compensation for
the services of the Trustee are intended to constitute expenses of
administration under any bankruptcy law or any similar federal or state law for
the relief of debtors.
Section 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
CONFLICTING INTERESTS.
There shall at all times be a Trustee hereunder that is a corporation
permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to act as
trustee under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, the Trustee shall take such action as is required
pursuant to said Section 310(b).
Section 608. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to such series.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act after written
request therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607(a)
and shall fail to resign after written request therefor by the Company
or by any such Holder of a Security, 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 any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities, or (ii) subject to
Section 315(e) of the Trust Indenture Act, any Holder of a Security who has
been a bona fide Holder of a Security of any series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or
Trustees.
(e) 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,
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 609. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
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the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 609, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of Registered Securities, if any, of such series as their names
and addresses appear in the Security Register and, if Securities of such series
are issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United
States. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company and/or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such
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retiring Trustee hereunder, subject nevertheless to its claim, if any, provided
for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee
shall with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture other than as
hereinafter expressly set forth, and each such successor Trustee without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee, to the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
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(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 610. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 611. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Authenticating
Agents, which may be an Affiliate of the Company, with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of that or those series issued upon original issue
or exchange, registration of transfer or partial redemption or conversion
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
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Each Authenticating Agent shall be acceptable to the Company and,
except as specified as contemplated by Section 301, shall at all times be a
corporation that would be permitted by Section 310(a)(1) and (5) of the Trust
Indenture Act to be able to act as a trustee under an indenture qualified under
the Trust Indenture Act, is authorized under applicable law and by its charter
to act as such and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of not less that
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section. If the Authenticating Agent has or shall acquire any conflicting
interest, as defined in Section 310(b) of the Trust Indenture Act, with respect
to the Securities of any series, the Authenticating Agent shall take such
action as is required pursuant to said Section 310(b).
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
of Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder,
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with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
_____________________________,
As Trustee
By_____________________________
As Authenticating Agent
By_____________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not
comply with Section 102) by the Company, shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
The Trustee is hereby appointed as an Authenticating Agent.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities of such series as of such
Regular Record Date, or if there is no Regular Record Date for interest
for such series of Securities, semi-annually, upon such dates as are
set forth in the Board Resolution or indenture supplemental hereto
authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. PRESERVATION OF INFORMATION;
COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Securities or Coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any Paying Agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with Section 312 of
the Trust Indenture Act, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
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Section 703. REPORTS BY TRUSTEE.
(a) Within 60 days after March 15 of each year commencing with the
year following the first issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit pursuant to Section 313(c) of the Trust Indenture Act a brief report
dated as of such September 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding September 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
Section 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional inform-
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ation, documents and reports with respect to compliance by the Company
with respect to compliance by such obligor with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(4) transmit within 30 days after September 15 of each year to
the Trustee, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer of the
Company as to his or her knowledge of such obligor's compliance with
all conditions and covenants under the Indenture as determined without
regard to any period of grace or requirement of notice provided under
the Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or lease
of the property of the Company as an entirety or substantially as an entirety,
to any other Person (whether or not affiliated with the Company); PROVIDED,
HOWEVER, that:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity 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
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existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed and delivered by the successor
Person to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest
on or any Additional Amounts in respect of all the Securities and the
performance of every other covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
default, and no event (including, without limitation, default under
Section 1006) which, after notice or lapse of time or both, would
become a default, shall have happened and be continuing; and
(3) each of the Company and the successor Person has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Section 802. SUCCESSOR CORPORATION SUBSTITUTED FOR
COMPANY.
Upon any consolidation or merger or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person 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 Person had been named as the Company herein,
and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities and the Coupons.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the
Company, when authorized by Board Resolutions, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal (or
premium, if any) on Registered Securities or of principal (or premium,
if any) or any interest on Bearer Securities, to permit Registered
Securities to be exchanged for Bearer Securities or to permit or
facilitate the issuance of Securities in uncertified form, PROVIDED any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any Coupons appertaining thereto in any
material respect; or
(4) to establish the form or terms of Securities of any series
and any Coupons appertaining thereto as permitted by Sections 201 and
301; or
(5) 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 as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than
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one Trustee, pursuant to the requirements of Section 609(b); or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture and which shall not adversely
affect the interest of the Holders of Securities of any series or any
related Coupons in any material respect; or
(7) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default; or
(9) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to conform the
obligations of the Company and the Trustee under this Indenture to the
obligations imposed on such Person hereunder pursuant to the Trust
Indenture Act or under any similar federal statute hereafter enacted,
and any rules or regulations of the Commission thereunder; or
(10) to make provision with respect to the conversion rights of
Holders of Convertible Securities pursuant to the requirements of
Section 1606.
(11) to modify, delete or add to any of the provisions of this
Indenture other than as contemplated by classes (1) through (11) of
this Section; PROVIDED that any such modification, deletion or addition
shall become effective only with respect to series of Securities
established pursuant to Section 301 after the effective date of such
modification, deletion, or addition.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by Board Resolutions, and the Trustee
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may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental Indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any Additional
Amounts payable in respect thereof, or any premium payable upon the
redemption thereof, or change the obligation of the Company to pay
Additional Amounts pursuant to Section 1004 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or change the Place of Payment,
coin or currency in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section
1404 for quorum or voting, or
(3) modify any of the provisions of this Section, or Sections
512, 513 or Section 1009, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders; or
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(5) adversely affect the right to convert any Convertible
Security.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 315 of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of a Security theretofore or thereafter authenticated and delivered
hereunder and of any Coupons appertaining thereto shall be bound thereby.
Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
Section 907. SUBORDINATION UNIMPAIRED.
No supplemental indenture entered into under this Article shall modify,
directly or indirectly, the provisions of Article Fifteen or the definition of
Senior Indebtedness in Section 101 in any manner that might alter or impair
the subordination of the Securities with respect to Senior Indebtedness then
outstanding, unless each holder of such Senior Indebtedness has consented
thereto in writing.
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on or any Additional Amounts payable in respect of
the Securities of that series in accordance with the terms of such series of
Securities, any Coupons appertaining thereto and this Indenture. Any interest
due on and any Additional Amounts payable in respect of Bearer Securities on or
before Maturity, other than Additional Amounts, if any, payable as provided in
Section 1004 in respect of principal of (or premium, if any, on) such a
Security, shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of
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such series (but not Bearer Securities, except as otherwise provided below,
unless such Place of Payment is located outside the United States) may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer, exchange or, if applicable,
conversion and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. If Securities
of a series are issuable as Bearer Securities, the Company shall maintain,
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for such series which is located outside the United States
where Securities of such series and the related Coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of such series pursuant to Section 1004); PROVIDED, HOWEVER, that if
the Securities of such series are listed on the Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company shall maintain a paying agent in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related Coupons may be presented and surrendered for payment (including payment
of any Additional Amounts payable on Bearer Securities of that series pursuant
to Section 1004) at the place specified for the purpose pursuant to Section
301, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
Except as otherwise specified as contemplated by Section 301, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States or by check mailed to
any address in the United States or by transfer to an account maintained with a
bank located in the United States; PROVIDED, HOWEVER, payment of principal of
and any premium and interest in U.S. dollars (including Additional Amounts
payable in respect thereof) on any Bearer Security may be made at the Corporate
Trust Office or any office or agency designated by the Company in the Borough
of Manhattan, The City of New York if (but only if) payment of the full amount
of such principal, premium, interest or Additional Amounts at all offices
outside the United States maintained for
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the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of their obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency. Unless otherwise specified as contemplated by Section
301, the Company hereby designates as the Place of Payment for each series the
Corporate Trust Office. Pursuant to Section 301(9) of this Indenture, the
Company may subsequently appoint a place or places in the Borough of
Manhattan, The City of New York where such Securities may be payable.
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD
IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any), or interest on, any of the Securities of
that series, segregate and hold in trust for the benefit of the Person entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(and premium, if any), or interest on, any Securities of that series, deposit
with any Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Except as otherwise provided hereby or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest and
Additional Amounts on any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities for such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal (and
premium, if any)
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or interest has become due and payable, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security of any
such series or any Coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest on, or in respect
of, any Security of any series or any Coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of Additional Amounts provided by the
terms of such series established hereby or pursuant hereto to the extent that,
in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
Except as otherwise provided herein or pursuant hereto, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to such series of
Securities (or if the Securities of that series shall not bear interest prior
to Maturity, the first day on which a payment of principal (and premium, if
any) is made), and at least 10 days prior to each date of payment or principal
(and premium, if any) or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Company
will furnish the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal (and
premium, if any) of or interest on the Securities of that series shall be made
to Holders of Securities of that series or the Coupons appertaining thereto who
are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or Coupons and the
Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by this Section. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with
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actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
Section 1005. STATEMENT AS TO COMPLIANCE;
NOTICE OF CERTAIN DEFAULTS.
(a) The Company will, in addition to the reports required by Section
704(4), deliver to the Trustee, within 120 days after the end of each fiscal
year (which on the date hereof ends on December 31), a written statement, which
need not comply with Section 102, signed by the Chairman of the Board, a Deputy
Chairman, a Vice Chairman, the President or a Vice President and by the
Treasurer or an Assistant Treasurer of the Company, stating, as to each signer
thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all of its under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature
and status thereof, and (b) no event has occurred and is continuing
which is, or after notice or lapse of time or both would become, a
default or an Event of Default, or, if such an event has occurred and
is continuing, specifying each such event known to him and the nature
and status thereof.
(b) The Company will deliver to the Trustee, within five days after
the occurrence thereof, written notice of any event which after notice or lapse
of time or both would become an Event of Default.
Section 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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Section 1007. CORPORATE EXISTENCE.
Subject to Article Eight, 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 and the corporate
existence, rights (charter and statutory) and franchises of each Principal
Constituent Bank; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such corporate existence, right or franchise if the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries considered as a whole and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1006 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by Board Resolution. In case of any redemption at the election of the Company
of the Securities of any series, with the same issue date, interest rate and
Stated Maturity,
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the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
of such series to be redeemed.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED.
If less than all the Securities of any series with the same issue date,
interest rate, Stated Maturity and other terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series 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 of the principal amount of Registered Securities of such
series; PROVIDED, HOWEVER, that no such partial redemption shall reduce the
portion of the principal amount of a Registered Security of such series not
redeemed to less than the minimum denomination for a Security of such series
established herein pursuant hereto.
If any Convertible Security selected for partial redemption is
converted in part before termination of the conversion right with respect to
the portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 of such Securities which has been or is to be
redeemed.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to the
Holders of
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Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Securities to be
redeemed,
(4) in case any Registered Security is to be redeemed in part
only, the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the Holder
of such Security will receive, without charge, a new Registered
Security or Registered Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed only, against
tender of such Security and any Coupons appertaining thereto, and, if
applicable, that interest and Additional Amounts, if any, thereon shall
cease to accrue on and after said date,
(6) in the case of Convertible Securities, the Conversion Price
then in effect, the date on which the right to convert the principal
amount of the Securities or the portions thereof to be redeemed will
terminate and the place or places where such Securities may be
surrendered for conversion,
(7) the place or places where such Securities, together, in the
case of Bearer Securities with all Coupons appertaining thereto, if
any, maturing after
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the Redemption Date, are to be surrendered for payment of the
Redemption Price, and
(8) that the redemption is for a sinking fund, if such is the
case.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on and any Additional
Amounts with respect thereto, all the Securities or portions thereof which are
to be redeemed on that date.
If any Convertible Security or portion thereof called for redemption is
converted pursuant to Article Sixteen, any money deposited with the Trustee or
so segregated and held in trust for the redemption of such Security or portion
thereof shall (subject to any right of the Holder of the Security on a Regular
Record Date preceding such conversion to receive interest) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price 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, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest (or
any Additional Amounts) to the Redemption Date;
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PROVIDED, HOWEVER, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only
upon presentation and surrender of coupons for such interest (at an office or
agency located outside the United States except as otherwise provided in
Section 1002), and PROVIDED, FURTHER, that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
Regular Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
PROVIDED, HOWEVER, that interest (or any Additional Amounts) represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an office or agency located outside of the United States except as otherwise
provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that purpose
pursuant to Section 1002 (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 Securities of the same series, containing
identical terms and provisions, 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
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Security so surrendered. If a Security in global form is so surrendered, the
Company shall execute, and the Trustee shall authenticate and deliver to the
U.S. Depository or other depository for such Security in global form as shall
be specified in the Company Order with respect thereto to the Trustee, without
service charge, a new Security in global form in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Security in global
form so surrendered.
Section 1108. CONVERSION ARRANGEMENTS ON CALL
FOR REDEMPTION.
Notwithstanding anything to the contrary contained in this Indenture,
in connection with any redemption of Convertible Securities of any series, the
Company, by an agreement with one or more investment bankers or other
purchasers, may arrange for such purchasers to purchase all such Convertible
Securities called for redemption (the "Called Securities") which are either (i)
surrendered for redemption or (ii) not duly surrendered for redemption or
conversion prior to the close of business on the Redemption Date, and to
convert the same into shares of Common Stock, by the purchasers' depositing
with the Trustee (acting as Paying Agent with respect to the deposit of such
amount and as conversion agent with respect to the conversion of such Called
Securities), in trust for the Holders of the Called Securities, on or prior to
the Redemption Date in the manner agreed to by the Company and such purchasers,
an amount sufficient to pay the Redemption Price, payable by the Company on
redemption of such Called Securities. In connection with any such arrangement
for purchase and conversion, the Trustee as Paying Agent shall pay on or after
the Redemption Date such amounts so deposited by the purchasers in exchange for
Called Securities surrendered for redemption prior to the close of business on
the Redemption Date and for all Called Securities surrendered after such
Redemption Date. Notwithstanding anything to the contrary contained in this
Article Eleven, the obligation of the Company to pay the Redemption Price of
such Called Securities shall be satisfied and discharged to the extent such
amount is so paid by such purchasers, PROVIDED, HOWEVER, that nothing in this
Section 1108 shall in any way relieve the Company of the obligation to pay such
Redemption Price on all Called Securities to the extent such amount is not so
paid by said purchasers. For all purposes of this Indenture, any Called
Securities surrendered by the Holders for redemption, and any Called Securities
not duly surrendered for redemption or conversion prior to the close of
business on the Redemption Date, shall be deemed acquired by such purchasers
from such Holders and surrendered by such purchasers for conversion and shall
in all respects be deemed to have been converted, all as of immediately prior
to the close of business on the Redemption Date, subject to the deposit by the
Purchasers
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of the above amount as aforesaid. Nothing in this Section 1108 shall in any
way limit the right of any Holder of a Security to convert his Security
pursuant to the terms of this Indenture and of such Security at any time prior
to the close of business on the Redemption Date applicable thereto.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
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 such 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 1202. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS
WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to
the terms of such Securities as provided for by the terms of such series (1)
deliver Outstanding Securities of such series (other than any of such
Securities previously called for redemption or any of such Securities in
respect of which cash shall have been released to the Company), together in the
case of any Bearer Securities of such series with all unmatured Coupons
appertaining thereto, and (2) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities or which have
been surrendered for conversion pursuant to Article Sixteen, PROVIDED that such
series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the
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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. If as a result of the delivery or credit of Securities of
any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, PROVIDED, HOWEVER,
that the Trustee or such Paying Agent shall at the request of the Company from
time to time pay over and deliver to the Company any cash payment so being held
by the Trustee or such Paying Agent upon delivery by the Company to the Trustee
of Securities of that series purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
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Section 1203. REDEMPTION OF SECURITIES FOR SINKING
FUND.
Not less than 75 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 mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount,
if any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 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 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Article Thirteen, in connection with any repayment of Securities, the
Company may arrange for the purchase of any Securities by an agreement with one
or more investment bankers or other purchasers to purchase such Securities by
paying to the Holders of such Securities on or before the close of business on
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the repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS
Section 1401. PURPOSES FOR WHICH MEETINGS MAY BE
CALLED.
A meeting of Holders of Securities of such series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or, if Securities of such series are to be issued as Bearer Securities,
in London, as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1401, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such
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purposes by giving notice thereof as provided in subsection (a) of this
Section.
Section 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the 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 1402(a), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; PROVIDED, HOWEVER, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less
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than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not present or represented at the meeting.
Section 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented
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by him; PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such series or
proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1406. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent 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 triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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ARTICLE FIFTEEN
SUBORDINATION
Section 1501. SECURITIES SUBORDINATED TO SENIOR
INDEBTEDNESS.
The Company covenants and agrees, and each Holder of Securities, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
evidenced by the Securities and the payment of the principal of (and premium,
if any) and interest on and any Additional Amounts payable in respect thereof
is hereby expressly subordinated, to the extent and in the manner hereinafter
set forth, in right of payment to the prior payment in full of Senior
Indebtedness.
Anything in this Indenture or in the Securities of any series to the
contrary notwithstanding, the indebtedness evidenced by the Securities shall be
subordinate and junior in right of payment, to the extent and in the manner
hereinafter set forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization, arrangement or other similar
proceedings in connection therewith, relative to the Company or to its
property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding-up of the Company, whether or not involving
insolvency or bankruptcy, then the holders of Senior Indebtedness shall be
entitled to receive payment in full of all principal, premium and interest
on all Senior Indebtedness before the Holders of the Securities are entitled
to receive any payment on account of principal, premium, if any, interest or
Additional Amounts upon the Securities, and to that end (but subject to the
power of a court of competent jurisdiction to make other equitable
provisions reflecting the rights conferred in the Securities upon Senior
Indebtedness and the Holders thereof with respect to the subordinated
indebtedness represented by the Securities and the Holders hereof by a
lawful plan of reorganization under applicable bankruptcy law) the holders
of Senior Indebtedness shall be entitled to receive for application in
payment thereof any payment or distribution of any kind or character,
whether in cash or property or securities, which may be payable or
deliverable in any such proceedings in respect of the Securities after
giving effect to any concurrent payment or distribution in respect of such
Senior Indebtedness, except securities which are subordinate and junior in
right of payment to the payment of all Senior Indebtedness then outstanding;
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(b) In the event that any Security of any series is declared or
otherwise becomes due and payable before its expressed maturity because of
the occurrence of an Event of Default hereunder (under circumstances when
the provisions of the foregoing clause (a) or the following clause (c) shall
not be applicable), the holders of Senior Indebtedness outstanding at the
time such Security so becomes due and payable because of such occurrence of
an Event of Default hereunder shall, so long as such declaration has not
been rescinded and annulled pursuant to Section 502, be entitled to receive
payment in full of all principal of, and premium and interest on, all such
Senior Indebtedness before the Holders of the Securities of such series are
entitled to receive any payment on account of principal of, premium, if any,
or interest and Additional Amounts on the Securities of such series;
provided, that nothing herein shall prevent the Holders of Securities from
seeking any remedy allowed at law or at equity so long as any judgment or
decree obtained thereby makes provision for enforcing this clause; and
(c) In the event that any default shall occur and be continuing with
respect to any Senior Indebtedness permitting the holders of such Senior
Indebtedness to accelerate the maturity thereof, if either (i) notice of
such default, in writing or by telegram, shall have been given to the
Company and to the Trustee, provided that judicial proceedings shall be
commenced in respect of such default within 180 days in the case of a
default in payment of principal or interest and within 90 days in the case
of any other default after the giving of such notice, and provided further
that only one such notice shall be given pursuant to this Section 1501(c) in
any twelve months period, or (ii) judicial proceedings shall be pending in
respect of such default, the Holders of the Securities and the Trustee for
their benefit shall not be entitled to receive any payment on account of
principal, premium, if any, or interest and Additional Amounts thereon
(including any such payment which would cause such default) unless payment
in full of all principal of, and premium and interest on, such Senior
Indebtedness shall have been made or provided for. The Trustee, forthwith
upon receipt of any notice received by it pursuant to this Section 1501(c),
shall, as soon as practicable, send a notice thereof to each Holder of
Securities at the time outstanding as the names and addresses of such
Holders appear on the Security Register.
In case despite the foregoing provisions, any payment or distribution
shall, in any such event, be paid or delivered to any Holder of the Securities
or to the Trustee for their benefit before all Senior Indebtedness shall have
been paid in full, such
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payment or distribution shall be held in trust for and so paid and delivered
to the holders of Senior Indebtedness (or their duly authorized
representatives) until all Senior Indebtedness shall have been paid in full.
The Company shall give written notice to the Trustee within five days
after the occurrence of any insolvency, bankruptcy, receivership, liquidation,
reorganization, arrangement or similar proceeding of the Company within the
meaning of this Section 1501. Upon any payment or distribution of assets of
the Company referred to in this Article Fifteen, the Trustee, subject to the
provisions of Section 315(a) through 315(b) of the Trust Indenture Act, and the
Holders of the Securities shall be entitled to rely upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors or other
liquidating agent making such payment or distribution, delivered to the Trustee
or to the Holders of Securities, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Fifteen.
In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Section 1501, the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, as to the extent to which such person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such person under this Section 1501, and if such
evidence is not furnished, the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
Section 1502. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness to which the
indebtedness evidenced by the Securities is in the circumstances subordinated
as provided in Section 1501, the Holders of the Securities shall be subrogated
to the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to such
Senior Indebtedness until all amounts owing on the Securities shall be paid in
full, and, as between the Company, its creditors other than holders of such
Senior Indebtedness, and the Holders of the Securities, no such payment or
distribution made to the holders of such Senior Indebtedness by
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virtue of this Article which otherwise would have been made to the Holders of
the Securities shall be deemed to be a payment by the Company on account of
such Senior Indebtedness, it being understood that the provisions of this
Article Fifteen are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
Section 1503. OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
its creditors other than the holders of Senior Indebtedness 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
premium, if any), interest on, or any Additional Amounts with respect to, 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 and creditors of the Company other than the holders
of Senior Indebtedness nor shall anything herein or therein prevent the Trustee
or the Holder of any Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Fifteen of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Fifteen, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other person making any
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company the amount thereof or payable thereon, the
amount paid or distributed thereon and all other facts pertinent thereto or to
this Article Fifteen.
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Section 1504. PAYMENTS ON SECURITIES PERMITTED.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture, or in any of the Securities, shall affect the obligation of the
Company to make, or prevent the Company from making payment of the principal of
(or premium, if any), interest or any Additional Amounts on the Securities in
accordance with the provisions hereof and thereof, except as otherwise provided
in this Article Fifteen.
Section 1505. EFFECTUATION OF SUBORDINATION BY
TRUSTEE.
Each Holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Fifteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1506. KNOWLEDGE OF TRUSTEE.
Notwithstanding the provisions of this Article Fifteen or any other
provisions of this Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee, or the taking of any other action by the Trustee,
unless and until the Trustee shall have received written notice thereof from
the Company, any Holder of the Securities, any paying or conversion agent of
the Company or the holder or representative of any class of Senior
Indebtedness.
Section 1507. TRUSTEE'S RELATION TO SENIOR
INDEBTEDNESS.
Except as otherwise provided in the Trust Indenture Act, the Trustee
shall be entitled to all the rights set forth in this Article with respect to
any Senior Indebtedness at the time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Notwithstanding anything in this
Indenture or in the Securities of any series, nothing in this Article Fifteen
shall apply to claims of or payment to the Trustee under or pursuant to
Sections 506 and 606.
With respect to holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Fifteen, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be
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deemed to owe any fiduciary duty to the holders of Senior Indebtedness and the
Trustee shall not be liable to any holder of Senior Indebtedness if it shall
pay over or deliver to Holders, the Company or any other Person monies or
assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article Fifteen or otherwise.
Section 1508. RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS NOT IMPAIRED.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
non-compliance by the Company with the terms, provisions or covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
ARTICLE SIXTEEN
CONVERSION
Section 1601. CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this Article
Sixteen and the terms of the Convertible Securities of the series proposed to
be converted, at the option of the Holder, any Convertible Security or any
portion of the principal amount thereof which is $1,000 or an integral multiple
thereof, may be converted into shares of Common Stock, as said shares shall be
constituted at the Date of Conversion, at the Conversion Price for such
Convertible Securities of such series in effect at the Date of Conversion.
Section 1602. MANNER OF EXERCISE OF CONVERSION
PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted shall surrender such Convertible Security
to the Company at its office or agency in the Borough of Manhattan, The City of
New York, together with the conversion notice in the form provided on the
Securities (or separate written notice) duly executed, and, if so required by
the Company, accompanied by instruments of transfer, in form satisfactory to
the Company and to the Trustee, duly executed by the Holder or by his duly
authorized attorney in writing. Any Registered Convertible Security so
surrendered during the period from the close of business on the Regular Record
Date preceding an Interest Payment Date for such
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Registered Convertible Security to the opening of business on such Interest
Payment Date shall (unless any such Registered Convertible Security or the
portion thereof being converted shall have been called for redemption on a
Redemption Date during such period, in which event no interest shall be payable
with respect to such Registered Convertible Security or portion thereof, as the
case may be, following such Redemption Date) also be accompanied by payment in
New York Clearing House funds or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of such Registered Convertible Security then being converted;
provided, however, that no such payment need be made if there shall exist, at
the time of conversion, a default in the payment of interest on the Convertible
Securities of such series. Except as provided in the immediately preceding
sentence, no adjustment shall be made for interest accrued on any Convertible
Security that shall be converted or for dividends on any shares of Common Stock
that shall be delivered upon the conversion of such Convertible Securities.
The funds so delivered to such office or agency shall be paid to the Company on
or after such Interest Payment Date, unless the Company shall default in the
payment of the interest due on such Interest Payment Date, in which event such
funds shall be repaid to the Person who delivered the same. As promptly as
practicable after the surrender of any Convertible Security for conversion as
aforesaid, the Company shall deliver at said office or agency to such Holder,
or on his written order, a certificate or certificates for the number of full
shares deliverable upon the conversion of such Convertible Security or portion
thereof and a check or cash in respect of any fraction of a share of Common
Stock otherwise deliverable upon such conversion, all as provided in this
Article Sixteen, together with a Convertible Security or Convertible Securities
of the same series in principal amount equal to the unconverted and unredeemed
portion, if any, of the Convertible Security so converted in accordance with
Section 305 hereof. Such conversion shall be deemed to have been effected on
the date on which such notice shall have been received at said office or agency
and such Convertible Security shall have been surrendered as aforesaid, and the
Person or Persons in whose name or names any certificate or certificates for
shares of Common Stock shall be deliverable upon such conversion shall be
deemed to have become on said date the Holder or Holders of record of the
shares represented thereby, provided, however, that any such surrender on any
date when the stock transfer books of the Company shall be closed shall
constitute the Person or Persons in whose name or names the certificates are to
be delivered as the record Holder or Holders thereof for all purposes on the
next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date of such
surrender.
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Section 1603. CASH ADJUSTMENT UPON CONVERSION.
The Company shall not be required to deliver fractions of shares of
Common Stock upon conversions of Convertible Securities. If more than one
Convertible Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares which shall be deliverable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities so surrendered. If any fractional interest in a share
of Common Stock would be deliverable upon the conversion of any Convertible
Security or Securities, the Company shall make an adjustment therefor in cash
equal to the current market value of such fractional interest computed to the
nearest cent either on the basis of the last reported sale price regular way of
the Common Stock on the New York Exchange (or, if not listed on the New York
Exchange, then on such other exchange on which the shares of Common Stock are
listed as the Company may designate) on the last Business Day prior to the Date
of Conversion or, if there shall not have been a sale on such last Business
Day, on the basis of the average of the bid and asked quotations therefor on
such exchange on such last Business Day or, if the Common Stock shall not then
be listed on any exchange, at the highest bid quotation in the over-the-
counter market on such last Business Day as reported by the National
Association of Securities Dealers through NASDAQ, its automated system for
reporting quotes, or its successor or such other generally accepted source of
publicly reported bid and asked quotations as the Company may reasonably
designate.
Section 1604. CONVERSION PRICE.
The Conversion Price applicable to any series of Convertible Securities
shall be the initial Conversion Price set forth on the Officers' Certificate or
supplemental indenture establishing such series adjusted as provided in this
Article Sixteen.
Section 1605. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price applicable to any series of Convertible Securities shall
be adjusted from time to time as follows:
(a) In case the Company shall, at any time or from time to time while
the Securities of any series are outstanding, (i) pay a dividend on its Common
Stock in shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock into a larger number of shares, or (iii) combine its outstanding
Common Stock into a smaller number of shares, the Conversion Price for such
series in effect immediately prior thereto shall be adjusted so that the Holder
of any Security of such series thereafter
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surrendered for conversion shall be entitled to receive the number of shares of
Common Stock or other securities of the Company which he would have owned or
have been entitled to receive after the happening of any of the events
described above, had such Convertible Security of such series been converted
immediately prior to the happening of such event. An adjustment made pursuant
to this subdivision (a) shall be come effective, in the case of a dividend, on
the payment date retroactively to immediately after the opening of business on
the day following the record date for the determination of shareholders
entitled to receive such dividend, subject to the provisions of paragraph (g)
of this Section 1605, and shall become effective in the case of a subdivision
or combination immediately after the opening of business on the day following
the day when such subdivision or combination, as the case may be, becomes
effective.
(b) In case the Company shall, at any time or from time to time while
the Convertible Securities of any series are outstanding, issue rights or
warrants to all holders of its shares of Common Stock entitling them (for a
period expiring within 45 days of the record date mentioned below) to subscribe
for or purchase shares of Common Stock at a price per share less than the
current market price per share of Common Stock (as defined in paragraph (d)
below) at such record date, the Conversion Price of any series of Convertible
Securities in effect immediately prior to the issuance of such rights or
warrants shall be adjusted as follows: the number of shares of Common Stock
into which $1,000 principal amount of Convertible Securities of such series was
theretofore convertible shall be multiplied by a fraction, of which the
numerator shall be the number of shares of Common Stock outstanding immediately
prior to such record date plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding immediately prior to such record
date plus the number of shares which the aggregate offering price of the total
number of shares so offered would purchase at such current market price; and
the Conversion Price for such series of Convertible Securities shall be
adjusted by dividing $1,000 by the new number of shares into which $1,000
principal amount of Securities of such series shall be convertible as
aforesaid. Such adjustment shall become effective on the date of such issuance
retroactively to immediately after the opening of business on the day following
the record date for the determination of shareholders entitled to receive such
rights or warrants, subject to the provisions of paragraph (g) of this Section
1605. In determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such current
market price, and in determining the aggregate offering price of such shares,
there shall be taken into account any consideration
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received by the Company for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of Directors.
(c) In case the Company shall, at any time from time to time while the
Convertible Securities of any series are outstanding, distribute to all holders
of shares of its Common Stock evidences of its indebtedness or securities or
assets (excluding cash dividends or cash distributions payable out of
consolidated net earnings or retained earnings) or rights or warrants to
subscribe for shares of Common Stock at a price per share less than the current
market price per share of Common Stock, determined in the manner set forth in
paragraph (d) below, but excluding rights or warrants referred to in paragraph
(b) above, the Conversion Price for such series of Convertible Securities in
effect immediately prior to such distribution shall be adjusted by multiplying
the number of shares of Common Stock into which $1,000 principal amount of
Convertible Securities of such series of Convertible Securities was theretofore
convertible by a fraction, of which the numerator shall be the current market
price per share of Common Stock (as defined in paragraph (d) below) on the
record date for such distribution, and of which the denominator shall be such
current market price per share of the Common Stock, less the then fair market
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of such evidences of
indebtedness, securities or assets or of such subscription rights or warrants
so distributed applicable to one share of Common Stock; and the Conversion
Price for such series of Convertible Securities shall be adjusted by dividing
$1,000 by the new number of shares into which $1,000 principal amount of
Convertible Securities of such series shall be convertible as aforesaid. Such
adjustment shall become effective on the date of such distribution
retroactively to immediately after the opening of business on the day following
the record date for the determination of shareholders entitled to receive such
distribution, subject to the provisions of paragraph (g) of this Section 1605.
For the purposes of this paragraph (c) consolidated net earnings or retained
earnings shall be computed by adding thereto all charges against retained
earnings on account of dividends paid in shares of Common Stock in respect of
which the Conversion Price has been adjusted, all as determined by Independent
Public Accountants, whose determination shall be conclusive.
(d) For the purpose of any computation under paragraphs (b) and (c)
above, the current market price per share of Common Stock at any date shall be
deemed to be the average of the market values of the shares of Common Stock for
the ten consecutive Business Days immediately preceding the day in
96
<PAGE> 107
question. The market value of the Common Stock for each day shall be
determined as provided in Section 1603 hereof.
(e) The Company may make such reductions in the Conversion Price for
any series of Convertible Securities, in addition to those required by
paragraphs (a), (b) and (c) of this Section as it considers to be advisable in
order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
(f) Except as herein otherwise provided, no adjustment in the
Conversion Price for any series of Convertible Securities shall be made by
reason of the issuance, in exchange for cash, property or services, of shares
of Common Stock, or any securities convertible into or exchangeable for shares
of Common Stock, or carrying the right to purchase any of the foregoing.
(g) If the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive any dividend or any
subscription or purchase rights or any distribution and shall, thereafter and
before the distribution to shareholders of any such dividend, subscription or
purchase rights or distribution, legally abandon its plan to pay or deliver
such dividend, subscription or purchase rights or distribution, then no
adjustment of the Conversion Price for any series of Convertible Securities
shall be required by reason of the taking of such record.
(h) No adjustment in the Conversion Price for any series of
Convertible Securities shall be required unless such adjustment would require
an increase or decrease of at least 1% in such price; provided, however, that
any adjustments which by reason of this paragraph (h) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article Sixteen shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(i) Whenever the Conversion Price for any series of Convertible
Securities is adjusted as herein provided, the Company shall (i) forthwith
place on file at the Principal Office of the Trustee an Officers' Certificate
showing in detail the facts requiring such adjustment and the Conversion Price
after such adjustment and shall exhibit the same from time to time to any
Holder of Convertible Securities of such series desiring an inspection thereof,
and (ii) cause a notice stating that such adjustment has been effected and the
adjusted Conversion Price to be mailed to the Holders of Registered Convertible
Securities of such series at their last addresses as they shall appear on the
Security Register.
97
<PAGE> 108
(j) The Company may delete, modify or vary any of the provisions
applicable to conversion of the Convertible Securities of any series, or may
add new provisions applicable thereto, all as may be contained in the Board
Resolutions and Officers' Certificate or supplemental indenture establishing
such series.
Section 1606. EFFECT OF RECLASSIFICATIONS,
CONSOLIDATIONS, MERGERS OR
SALES ON CONVERSION PRIVILEGE.
In case of any reclassification or change of outstanding shares of the
class of Common Stock issuable upon conversion of the Convertible Securities
(other than a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or combination), or
in case of any merger or consolidation of the Company with one or more other
corporations (other than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any reclassification or
change of outstanding shares of Common Stock issuable upon conversion of the
Securities), or in case of the merger of the Company into another corporation,
or in case of any sale or conveyance to another corporation of the property of
the Company as an entirety or substantially as an entirety, the Holder of
Convertible Securities of each then outstanding shall have the right to convert
such Convertible Security into the kind and amount of shares of capital stock
or other securities and property, including cash, receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Common Stock into which such Convertible Security
might have been converted immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. In any such case the Company, or
such successor or purchasing corporation, as the case may be, shall execute
with the Trustee one or more supplemental indentures (which shall conform to
the Trust Indenture Act of 1939 as in force at the date of the execution of
such supplemental indenture) containing provisions to the effect set forth
above in this Section 1606 and providing further for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article Sixteen; and any such adjustment which shall be approved by the
Board of Directors and set forth in such supplemental indenture or supplemental
indentures shall be conclusive for all purposes of this Section, and the
Trustee shall not be under any responsibility to determine the correctness of
any provision contained in such supplemental indenture or supplemental
indentures relating to either the kind or amount of shares of stock or
securities or property receivable by Holders of Securities of any series upon
the conversion of their
98
<PAGE> 109
Convertible Securities after any such reclassification, change, consolidation,
merger, sale or conveyance.
The above provisions of this Section 1606 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales and
conveyances.
Section 1607. TAXES ON CONVERSIONS.
The issue of stock certificates on conversions of Convertible
Securities shall be made without charge to the converting Holder of Convertible
Securities for any tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares in any name other than
that of the Holder of any Registered Convertible Security converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the Person or Persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 1608. COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available out of the
aggregate of its authorized but unissued shares or its issued shares held in
its treasury, or both, for the purpose of effecting the conversion of the
Securities, such number of its duly authorized shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
Securities.
If any shares of Common Stock reserved or to be reserved for the
purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority under any Federal or State law before
such shares may be validly delivered upon conversion, then the Company
covenants that it will in good faith and as expeditiously as possible endeavor
to secure registration or approval, as the case may be.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Convertible Securities shall upon delivery be
fully paid and nonassessable by the Company and free from all taxes, liens and
charges with respect to the issue or delivery thereof.
99
<PAGE> 110
Section 1609. DISCLAIMER BY TRUSTEE OF RESPONSIBILITY
FOR CERTAIN MATTERS.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Convertible Securities of any
series to determine whether any facts exist which may require any adjustment of
the Conversion Price for such series, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same, subject, however, to the provisions of Sections 315(a) through 315(b) of
the Trust Indenture Act. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property which may at any
time be issued or delivered upon the conversion of any Convertible Security;
and neither of them makes any representation with respect thereto. Neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion or, subject to Sections
315(a) through 315(b) of the Trust Indenture Act, to comply with any of the
covenants of the Company contained in this Article Sixteen.
Section 1610. COMPANY TO GIVE NOTICE OF CERTAIN
EVENTS.
In the event
(1) that the Company shall pay any dividend or make any
distribution to the holders of shares of Common Stock otherwise than in
cash charged against consolidated net earnings or retained earnings of
the Company and its consolidated net earnings or retained earnings of
the Company and its consolidated subsidiaries or in Common Stock; or
(2) that the Company shall offer for subscription or purchase,
pro rata, to the holders of shares of Common Stock any additional
shares of stock of any class or any securities convertible into or
exchangeable for stock of any class; or
(3) of any reclassification or change or outstanding shares of
the class of Common Stock issuable upon the conversion of the
Securities (other than a change in par value, or from par value to no
par
100
<PAGE> 111
value, or from no par value to par value, or as a result of a
subdivision or combination), or of any merger or consolidation of the
Company with, or merger of the Company into, another corporation (other
than a merger or consolidation in which the Company is the continuing
corporation and which does not result in any reclassification or change
of outstanding shares of Common stock issuable upon conversion of the
Securities), or of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety;
then, and in any one or more of such events, the Company will give to the
Trustee and each conversion agent written notice thereof at least fifteen days
prior to (i) the record date fixed with respect to any of the events specified
in (1) and (2) above, and (ii) the effective date of any of the events
specified in (3) above; and shall mail promptly a copy of such notice to the
Holders of Registered Convertible Securities at their last addresses as they
shall appear upon the Security Register. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
Section 1701. SECURITIES IN FOREIGN CURRENCIES.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than United States
dollars shall be treated for any such action or distribution as that amount of
United States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Registered
Securities of such series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the
101
<PAGE> 112
Company may specify in a written notice to the Trustee or, in the absence of
such written notice, as the Trustee may determine.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
102
<PAGE> 113
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] NATIONAL CITY CORPORATION
Attest:
By____________________________
Name:
__________________________ Title:
[SEAL] NBD BANK, NATIONAL ASSOCIATION
Attest:
__________________________ By____________________________
Name:
Title:
103
<PAGE> 114
STATE OF OHIO )
: SS.:
COUNTY OF CUYOHOGA )
On the ___th day of __________, 1991, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a [title] of NATIONAL CITY CORPORATION, a Delaware corporation, one
of the persons described in and who executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporation's seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
____________________________
Notary Public
[NOTARIAL SEAL]
104
<PAGE> 115
STATE OF _________)
: SS.:
COUNTY OF ________)
On the ___th day of __________, 1991, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a _____________ of NBD BANK, NATIONAL ASSOCIATION, one of the
persons described in and who executed the foregoing instrument; that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporation's seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
____________________________
Notary Public
[NOTARIAL SEAL]
105
<PAGE> 1
Exhibit 4.3
THE NOTES (HEREINAFTER REFERRED TO) ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY INSURED DEPOSITARY INSTITUTION OR OTHER SUBSIDIARY OF THE
COMPANY (HEREINAFTER REFERRED TO) AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS WHOLE BY THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITARY") TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
No. $
CUSIP 635405 AG8
NATIONAL CITY CORPORATION
6-5/8% SUBORDINATED NOTE DUE 2004
National City Corporation, a Delaware corporation (herein called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of
<PAGE> 2
DOLLARS ($ ) on March 1, 2004 at the office or
agency of the Company referred to below, and to pay interest thereon from March
2, 1994, or from the most recent date to which interest has been paid or duly
provided for, semi-annually on March 1 and September 1 (each, an "Interest
Payment Date") in each year, commencing on September 1, 1994, at the rate of
6-5/8% per annum, until the principal hereof is paid or made available for
payment. The interest so payable and punctually paid or duly provided for on
any Interest Payment Date, will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the February 15 or August 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid shall forthwith cease to be payable to
the registered Holder on such Regular Record Date, and may be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in such Indenture. Payment of the principal of (and premium, if
any) and interest and Additional Amounts on this Note will be made at the
Corporate Trust Office of the Trustee referred to on the reverse hereof, or at
such office or agency of the Company maintained for that purpose, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
This Note is one of the series of 6-5/8% Subordinated Notes Due 2004 (the
"Notes"). Reference is hereby made to the further provisions of this Note set
forth or the reverse hereof including, without limitation, provisions for
subordination of the payment of the principal of and interest on the Notes to
the prior payment in full of all Senior Indebtedness as defined in the
Indenture. Such further provisions shall for all purposes have the same effect
as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under said Indenture, or be valid or
obligatory for any purpose.
This Security shall be governed by and construed in accordance with the laws
of the State of New York.
2
<PAGE> 3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
NATIONAL CITY CORPORATION
[SEAL]
By:____________________________________
Chairman and Chief Executive Officer
Attest:
By: ______________________
Secretary
Dated:
Trustee's Certificate of Authentication:
This is one of the Securities of the series
designated herein, referred to in the
within-mentioned Indenture.
NBD Bank, National Association, as Trustee
By: _______________________
Authorized Signatory
3
<PAGE> 4
NATIONAL CITY CORPORATION
6-5/8% SUBORDINATED NOTE DUE 2004
This Note is one of a duly authorized issue of Securities of the Company,
issued and to be issued in one or more series under the subordinated indenture
(herein called the "Indenture"), dated as of February 1, 1994 between the
Company and NBD Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights thereunder of the Company, the
Trustee and the Holders of the Notes, and of the terms upon which the Notes
are, and are to be, authenticated and delivered.
The indebtedness evidenced by the Notes is, to the extent and in the manner
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of the principal of (and premium, if any) and interest
and Additional Amounts on all Senior Indebtedness as defined in the Indenture,
and this Security is issued subject to such provisions and each Holder of this
Note, by accepting the same, agrees to and shall be bound by such provisions,
and authorizes the Trustee in his behalf to take such action as may be
necessary or appropriate to effectuate such subordination as provided in the
Indenture and appoints the Trustee his attorney-in-fact for such purpose.
Subject to certain limitations in the Indenture, if an Event of Default
occurs and is continuing, then the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Notes may declare the principal of all
the Notes to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders).
Subject to certain exceptions requiring the consent of each Holder affected,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of not less than a majority in principal amount of the Outstanding
Notes affected, and compliance by the Company with certain provisions of the
Indenture and any past default under the Indenture (except a default in the
payment of the principal of or interest on or Additional Amounts, if any, with
respect to the Notes or in respect of a covenant or provision which under the
terms of the Indenture cannot be modified or amended without the consent of
each Holder affected) may be waived with the consent of the Holders of at least
a majority in principal amount of the Outstanding Notes. Without notice to or
4
<PAGE> 5
the consent of any Holder, the parties to the Indenture may amend or supplement
the Indenture or the Notes to, among other things, cure any ambiguity, defect
or inconsistency and provide for assumption of the Company's obligations to
Holder by another Person.
The Notes are not subject to redemption by the Company prior to maturity, and
no sinking fund is provided for the Notes.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register,
upon surrender of this Note for registration of transfer at the Corporate Trust
Office of the Trustee, or at such office or agency of the Company maintained
for that purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new Notes of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 or any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or exchange
of Notes, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection herewith.
Prior to and at the time of due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
Beneficial interests in the Notes will be shown on, and transfers thereof
will be effected only through, records maintained by the Depositary and its
participants. Owners of beneficial interests in this Note will not be entitled
to receive Notes in definitive form and will not be considered Holders of Notes
unless the Depositary notifies the Company in writing that it is no longer
willing or able to act as a depositary or if the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, or if the Company determines not to have the Notes represented by
Global Securities. In such circumstances,
5
<PAGE> 6
upon surrender by the Depositary or a successor depositary of the global
Securities, Notes in definitive form will be issued in fully registered form
without coupons, in minimum denominations of $1,000 or any integral multiple
thereof. Such definitive Notes shall be registered in such name or names as
the Depositary shall instruct the Trustee. If definitive Notes are so
delivered, the Company may make such changes to the form of this Note as are
necessary or appropriate to allow for the issuance of such definitive Notes.
All terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended. The Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture, all indentures
supplemental thereto and said Act for a statement of such terms.
6
<PAGE> 1
Exhibit 8.1
JONES, DAY, REAVIS & POGUE
599 Lexington Avenue
New York, New York 10022
March 2, 1994
National City Corporation
National City Center
1900 E. Ninth Street
Cleveland, Ohio 44114-3484
Re: Shelf Registration of $500,000,000
Senior, Subordinated and/or Convertible
DEBT SECURITIES ON FORM S-3
Dear Sirs:
We have acted as special United States tax counsel for National City
Corporation (the "Company") in connection with the registration of $500,000,000
of its debt securities which may be offered as senior unsecured debt
securities, subordinated unsecured debt securities and/or convertible
subordinated debt securities (collectively the "Debt Securities"), in amounts,
at prices and on terms to be determined at the time of sale, as more fully
described in the Prospectus (the "Prospectus") included in the Company's
Registration Statement on Form S-3 under the Securities Act of 1933,
Registration No. 33-39480 (the "Registration Statement"). You have requested
our opinion whether the discussion in the Prospectus under the caption "United
States Taxation" is an accurate summary of the principal United States federal
income tax consequences of ownership of the Debt Securities.
For purposes of our opinion, we have examined the Prospectus and the
Registration Statement and such other records, documents and instruments, and
have considered such matters of law, as in our judgment were necessary or
appropriate. In addition, we have assumed that the facts set forth in the
Prospectus are accurate. Any change in those facts or any change of law after
the date hereof could adversely affect our opinion.
<PAGE> 2
National City Corporation
March 2, 1994
Page 2
Subject to the foregoing, we are of the opinion that the statements of law
contained in the Prospectus under the caption "United States Taxation" are
correct.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to this Firm under the captions "United States
Taxation" and "Legal Opinions" in the Prospectus contained in the Registration
Statement.
Very truly yours,
Jones, Day, Reavis & Pogue
<PAGE> 1
<TABLE>
Exhibit 12.1
NATIONAL CITY CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
FOR THE PERIODS ENDING 1989-1993
<CAPTION>
(In Thousands) December 31,
- --------------------------------------------------------------------------------------------------------------------------------
1993 1992 1991 1990 1989
-----------------------------------------------------------
<S> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest on indebtedness $147,945 156,924 251,433 348,858 352,971
Portion of rents representative of interest factor 14,609 14,041 13,704 13,107 11,227
-----------------------------------------------------------
Fixed charges excluding interest on deposits 162,554 170,965 265,137 361,965 364,198
Interest on deposits 542,165 722,657 1,092,335 1,252,126 1,205,962
-----------------------------------------------------------
Total Fixed Charges 704,719 893,622 1,357,472 1,614,091 1,570,160
===========================================================
EARNINGS:
Income before income taxes 570,962 464,293 314,182 330,706 411,125
Fixed charges excluding interest on deposits 162,554 170,965 265,137 361,965 364,196
-----------------------------------------------------------
Subtotal 733,516 635,258 579,319 692,671 775,323
Interest on deposits 542,165 722,657 1,092,335 1,252,126 1,205,962
-----------------------------------------------------------
Total Earnings 1,275,681 1,357,915 1,671,654 1,944,797 1,981,285
===========================================================
RATIO OF EARNINGS TO FIXED CHARGES:
Excluding interest on deposits 4.51 3.72 2.18 1.91 2.13
Including interest on deposits 1.81 1.52 1.23 1.20 1.26
</TABLE>
