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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
May 5, 1999
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(Date of Report)
NATIONAL CITY CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 1-10074 34-1111088
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(State or other jurisdiction (Commission IRS Employer
of incorporation) File Number) Identification No.)
1900 East Ninth Street, Cleveland, Ohio 44114
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(Address of principal executive offices) (Zip Code)
(216) 575-2000
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(Registrant's telephone number, including area code)
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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Information and Exhibits.
The following exhibits are filed herewith and incorporated by reference
to Registration Statement No. 333-71207 of National City Corporation:
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
1.1 Underwriting Agreement, dated as of April 28, 1999 between
National City Corporation and the underwriters named therein.
1.2 Terms Agreement, dated as of April 28, 1999 between National
City Corporation and the underwriters named therein.
4.1 Senior Indenture, dated as of April 30, 1999 between National
City Corporation and The Bank of New York.
4.2 Subordinated Indenture, dated as of April 30, 1999 between
National City Corporation and The Bank of New York.
4.3 Form of 6 7/8% Subordinated Note due May 15, 2019.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of KPMG LLP.
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Signatures
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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.
Dated May 5, 1999 By /s/ Carlton E. Langer
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Carlton E. Langer
Vice President
and Assistant Secretary
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Exhibit 1.1
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NATIONAL CITY CORPORATION
(a Delaware corporation)
Senior Debt Securities and
Subordinated Debt Securities
UNDERWRITING AGREEMENT
Dated: April 28, 1999
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NATIONAL CITY CORPORATION
(a Delaware corporation)
Senior Debt Securities and
Subordinated Debt Securities
UNDERWRITING AGREEMENT
April 28, 1999
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
National City Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time, either together or separately,
certain of its senior debt securities (the "Senior Securities") and/or
subordinated debt securities (the "Subordinated Securities", and together with
the Senior Securities, the "Debt Securities"), in one or more offerings on terms
determined at the time of sale and set forth in a terms agreement in the form of
Exhibit A hereto (the "Terms Agreement").
The Senior Securities are to be issued under an Indenture to be dated
as of April 30, 1999 (as it may be amended or supplemented from time to time,
the "Senior Indenture"), between the Company and The Bank of New York ("BONY"),
as trustee (the "Senior Trustee"). The Subordinated Securities are to be issued
under an Indenture to dated as of April 30, 1999 (as it may be amended or
supplemented from time to time, the "Subordinated Indenture"), between the
Company and BONY, as trustee (the "Subordinated Trustee", and together with the
Senior Trustee, the "Trustees"). The Senior Indenture and the Subordinated
Indenture are collectively referred to herein as the "Indentures." The Senior
Securities and the Subordinated Securities may have varying designations,
maturities, rates and times of payment of interest, if any, selling prices,
redemption terms, if any, exchange terms, if any, and other specific terms as
set forth in the applicable Terms Agreement relating thereto.
As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firm or firms specified as Underwriter or
Underwriters in the applicable Terms Agreement relating to the Debt Securities
and the term "you" shall mean the Underwriter or Underwriters, if no
underwriting syndicate is purchasing the Debt Securities, or the representative
or
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representatives of the Underwriters, if an underwriting syndicate is purchasing
the Debt Securities, as specified in the applicable Terms Agreement.
Whenever the Company determines to make an offering of Debt Securities,
the Company will enter into a Terms Agreement providing for the sale of the
applicable Debt Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to the Debt Securities shall specify
whether Senior Securities or Subordinated Securities are to be issued, the names
of the Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof), the principal amount of Debt Securities which
each such Underwriter severally agrees to purchase, the price at which the Debt
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the time and place of delivery and payment and other
specific terms. The Terms Agreement may take the form of an exchange of any
standard form of written telecommunication between you and the Company. Each
offering of Debt Securities will be governed by this Agreement, as supplemented
by the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon the Company and each
Underwriter participating in the offering of such Debt Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-71207), including a prospectus, relating to the Debt Securities and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"). Such registration statement
has been declared effective by the Commission. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the applicable Debt Securities,
the terms of the offering thereof and the other matters set forth therein will
be prepared and filed pursuant to Rule 424 under the 1933 Act in connection with
any offering of Debt Securities. Any such prospectus supplement, in the form
first filed after the date of the applicable Terms Agreement pursuant to Rule
424, is herein referred to as the "Prospectus Supplement." Such registration
statement, as amended at the date of the applicable Terms Agreement, including
the exhibits thereto and the documents incorporated by reference therein, is
herein called the "Registration Statement," and the basic prospectus included
therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus," except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement,
in either case including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations") (the "Rule 430A Information")
or Rule 434(d) of the 1933 Act Regulations (the "Rule 434 Information") and the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein; provided that, if the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all references
to "Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement; and PROVIDED, FURTHER, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the
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Company in reliance upon Rule 434 of the 1933 Act Regulations, and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this Agreement,
all references to the Registration Statement, Prospectus, Term Sheet or
preliminary prospectus or to any amendment or supplement to any of the foregoing
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to each of the Underwriters as of the date hereof, as of the date of
each Terms Agreement and as of the Closing Time referred to in Section 2(b)
that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. Each of the Registration Statement, including any
Rule 462(b) Registration Statement, has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
(ii) As of the effective date of the Registration Statement
and any amendment thereto and as of the applicable filing date as to
any Prospectus Supplement and any amendment thereto, (A) the
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations, the Trust Indenture Act
of 1939, as amended (the "1939 Act"), and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations");
(B) neither the Registration Statement nor any amendment or supplement
thereto contained or will contain an untrue statement of a material
fact or omitted or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and (C) neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
this representation and warranty does not apply to statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through you expressly for use in the Registration Statement or the
Prospectus. At the Closing Time, the applicable Indenture, if any, will
comply in all material respects with the requirements of the 1939 Act
and the 1939 Act Regulations.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to
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the Underwriters for use in connection with any offering hereunder was
substantively identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(iii) The documents incorporated by reference or deemed to be
incorporated in the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act, at the time they were or hereafter are filed with the
Commission, complied in all material respects with the requirements of
the 1934 Act, and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read together and
with the other information in the Prospectus, as of the applicable
effective date of the Registration Statement and any amendment thereto,
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(v) This Agreement has been duly authorized, executed and
delivered by the Company; and upon execution and delivery of each Terms
Agreement by the Company, such Terms Agreement shall have been duly
authorized, executed and delivered by the Company.
(vi) The financial statements incorporated by reference in the
Registration Statement present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as at the
dates indicated and the consolidated results of their operations and
cash flows for the periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis; and the supporting schedules included in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition (financial or otherwise), or in the earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries, considered as one
enterprise, and (C) except for regular quarterly dividends on the
Company's Common Stock, par value $4.00 per share (the "Common Stock"),
the Company's Preferred Stock, stated value $50 per share, and the
Company's repurchase of its Common Stock and Preferred Stock pursuant
to its publicly announced stock repurchase programs, there has been no
dividend or
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distribution of any kind declared, paid or made by the Company on any
class of its Capital Stock.
(ix) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement; the Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended
(the "Bank Holding Company Act"); and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not have a Material Adverse Effect.
(x) Each "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X) (a "Significant
Subsidiary") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not have a
Material Adverse Effect; except as otherwise stated in the Registration
Statement, all of the issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable (subject to the provisions of Section 55
of Title 12 of the United States Code in the case of Significant
Subsidiaries which are national banking associations) and, except for
director's qualifying shares, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(xi) The Debt Securities conform in all material respects to
the summary descriptions thereof contained or incorporated by reference
in the Prospectus and such summary descriptions conform to the rights
set forth in the instruments defining the same.
(xii) The Debt Securities shall, on the date of the Terms
Agreement relating to such Debt Securities, be duly authorized for
issuance and sale pursuant to this Agreement and, when such Debt
Securities are duly executed, authenticated and delivered pursuant to
the provisions of this Agreement and the applicable Indenture against
payment of the consideration therefor in accordance with this Agreement
and the applicable Terms Agreement, such Debt Securities will be valid
and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforceability thereof may be
limited by bankruptcy, reorganization, moratorium, fraudulent
conveyance, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and will be entitled to the benefits of
the applicable Indenture; and the Indentures conform in all material
respects to all statements relating
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thereto contained in the Prospectus.
(xiv) The applicable Indenture has been duly authorized by the
Company, will be substantially in the form filed as an exhibit to the
Registration Statement and, when duly executed and delivered by the
Company and the Trustee, will constitute a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy,
reorganization, moratorium, fraudulent conveyance, insolvency or other
laws relating to or affecting enforcement of creditors' rights or by
general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the summary
descriptions of the applicable Indenture set forth in the Prospectus
conforms in all material respects to the provisions contained in the
applicable Indenture.
(xv) Neither the Company nor any Significant Subsidiary is in
violation of its charter or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Company or any of
its Significant Subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of the Company
or of any of its Significant Subsidiaries may be subject; and the
execution, delivery and performance of this Agreement, the applicable
Terms Agreement and the Indentures by the Company, the issuance and
delivery of the Debt Securities, the consummation by the Company of the
transactions contemplated in this Agreement, the applicable Terms
Agreement and in the Registration Statement, and compliance by the
Company with the terms of this Agreement, the applicable Terms
Agreement and the Indentures do not and will not conflict with or
constitute a breach of or default under, or result in the creation or
imposition of any material lien, charge or encumbrance upon any
material property or assets of the Company or any of its Significant
Subsidiaries pursuant to any material contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property
or assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any applicable law,
administrative regulation or administrative or court decree.
(xvi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the offering, issuance or sale of the Debt Securities hereunder or
the consummation of the transactions contemplated by this Agreement or
for the due execution, delivery or performance of the Indentures by the
Company, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations (which
requirements have been met) or state securities laws and except for the
qualification of the Indentures under the 1939 Act.
(xvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting
the Company or any of its subsidiaries which is required to
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be disclosed in the Registration Statement (other than as disclosed
therein), or which might result in a Material Adverse Effect, or which
might materially and adversely affect the properties or assets of the
Company and its subsidiaries considered as one enterprise, or, which
might materially or adversely affect the consummation of this Agreement
or any Terms Agreement; all pending legal or governmental proceedings
to which the Company or any subsidiary is a party or of which any of
their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business of the Company or any subsidiary,
are considered in the aggregate, not material; and there are no
contracts or documents of the Company or any Significant Subsidiary
which are required to be filed or incorporated by reference as exhibits
to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed or incorporated by reference.
(xix) The Company and its Significant Subsidiaries possess
such certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies material to the
conduct of the business now operated by them, and neither the Company
nor any of its Significant Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly, or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings or business affairs or which is reasonably likely to
affect the business prospects of the Company and its subsidiaries
considered as one enterprise.
(xx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Debt Securities.
(a) Any certificate signed by any duly authorized officer of the
Company or any Significant Subsidiary and delivered to you or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
Section 2. PURCHASE AND SALE. The several commitments of the Underwriters to
purchase Debt Securities pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
(a) Payment of the purchase price for, and delivery of, any Debt
Securities to be purchased by the Underwriters pursuant to the applicable Terms
Agreement shall be made at the office of Brown & Wood LLP, One World Trade
Center, New York, New York 10048, or at such other place as shall be agreed upon
by you and the Company in the applicable Terms Agreement, at 9:00 A.M., New York
City time, on the third (fourth, if the pricing occurs after 4:30 P.M., New York
City time, on any given day) business day (unless postponed in accordance with
the provisions of Section 10) following the date of the applicable Terms
Agreement or at such other time as shall be agreed upon by you and the Company
(each such time and date being referred to as a "Closing Time"). Unless
otherwise specified in the applicable Terms Agreement, payment shall be made by
wire transfer in immediately available funds to the account so specified to the
Underwriters against delivery to you for the respective accounts of the
Underwriters of the Debt
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Securities to be purchased by them. Such Debt Securities or certificates for
such Debt Securities, as applicable, shall be in such denominations and
registered in such names as you may request in writing at least one full
business day prior to the applicable Closing Time. Such Debt Securities or
certificates, as applicable, will be made available for examination and
packaging by you not later than 10:00 A.M. on the business day prior to Closing
Time.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a)(i) If reasonably requested by you in connection with the offering
of the Debt Securities, the Company will prepare a preliminary prospectus
supplement containing such information concerning the Debt Securities as you and
the Company deem appropriate and (ii) promptly following the execution of each
Terms Agreement, the Company will prepare a Prospectus Supplement that complies
with the 1933 Act and the 1933 Act Regulations and that sets forth the number or
principal amount of Debt Securities covered thereby, the names of the
Underwriters participating in the offering and the principal amount of Debt
Securities which each severally has agreed to purchase, the name of each
Underwriter, if any, acting as representative in connection with the offering,
the price at which the Debt Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the selling concession and
reallowance, if any, and such other information concerning the Debt Securities
as you and the Company deem appropriate in connection with the offering of the
Debt Securities. The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act
and will furnish to the Underwriters named therein as many copies of any
preliminary prospectus supplement, the Prospectus and the Prospectus Supplement
as you shall reasonably request. If the Company elects to rely on Rule 434 under
the 1933 Act Regulations, the Company will prepare an abbreviated term sheet
that complies with the requirements of Rule 434 under the 1933 Act Regulations
(a "Rule 434 Prospectus") and will provide the Underwriters with copies of the
form of Rule 434 Prospectus, in such number as the Underwriters may reasonably
request, and file or transmit for filing with the Commission the form of
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of business
in New York on the business day immediately succeeding the date of the
applicable Terms Agreement.
(b) The Company will notify each of you immediately, and confirm the
notice in writing, (i) of the effectiveness of the Registration Statement and
any amendment thereto (including any post-effective amendment), (ii) of the
mailing or the delivery or EDGAR transmission to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act, (iii) of the receipt of any comments from the Commission, (iv) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) The Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b)), any Term Sheet or any amendment, supplement or revision to the
Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish you with copies of any such amendment or supplement
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or other document proposed to be filed a reasonable amount of time prior to such
proposed filing and will not file any such amendment or supplement or other
document or use any such prospectus to which you or counsel shall reasonably
object.
(e) The Company will deliver to you as many signed copies of the
registration statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) as you
may reasonably request and will also deliver to you a conformed copy of the
Registration Statement and of each amendment thereto for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be substantively identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(f) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Debt Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser or if it shall be necessary,
in the opinion of either such counsel, at any such time to amend or supplement
the Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, such amendment or supplement,
whether by documents pursuant to the 1934 Act or otherwise, as may be necessary
to correct such untrue statement or omission to make the Registration Statement
or the Prospectus comply with such requirements.
(g) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(h) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Debt Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as you may designate;
PROVIDED, HOWEVER, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified and will
not be obligated to execute a general consent to service of process in any
state. In each jurisdiction in which the Debt Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for as long as may
be required for the distribution of the Debt Securities. The Company will
promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Debt Securities for sale
in any such state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(i) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning
not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
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(j) If and to the extent specified in the applicable Terms Agreement,
the Company will use its best efforts to effect the listing of the Debt
Securities on the New York Stock Exchange by the Closing Time with respect to
the applicable Terms Agreement.
(k) For such period of time as is specified in the applicable Terms
Agreement, commencing on the date of such Terms Agreement, the Company will not,
without the prior written consent of the Underwriter, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose of,
any Debt Securities.
Section 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement and any applicable Terms
Agreement, including (a) the printing and filing of the Registration Statement,
as originally filed and of each amendment thereto, (b) the reproduction and
delivery of this Agreement and each Terms Agreement, (c) the preparation,
issuance and delivery of the certificates for Debt Securities to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Debt Securities under securities laws
in accordance with Section 3(g) hereof, including filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and the Legal Investment
Survey (copies of which shall be furnished to the Company promptly after
preparation by such counsel), (f) the printing and delivery to the Underwriters
of copies of the Registration Statement and all amendments thereto, of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (g) the reproduction and delivery to the Underwriters of copies of the
Indentures, if applicable, and the Blue Sky Survey and any Legal Investment
Survey, (h) the fees of rating agencies, (i) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc. ("NASD"), and (j) the fees and expenses, if applicable, incurred
in connection with the listing of the Debt Securities.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 9(a)(i) or (iv) hereof, the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Debt Securities pursuant to any Terms
Agreement are subject to the accuracy of the representations and warranties of
the Company herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of all of its covenants and other obligations
hereunder, and to the following further conditions:
(a) At the applicable Closing Time:
(i) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act. No
stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission. Any request on the part of
the Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Debt Securities, the specific method of distribution and similar
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matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of
Rule 430A), or, if the Company has elected to rely upon Rule 434 of the
1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with
Rule 424(b)(7);
(iii) The rating assigned by any nationally recognized
statistical rating organization to any debt securities of the Company
as of the date of the applicable Terms Agreement shall not have been
lowered since the execution of such Terms Agreement nor shall any such
rating organization have publicly announced that it has placed any debt
securities of the Company on what is commonly termed a "watch list" for
possible downgrading;
(iv) There shall not have come to the attention of such of
you as may be named in the applicable Terms Agreement any facts that
would cause such of you to believe that the Prospectus, together with
the applicable Prospectus Supplement, at the time it was required to be
delivered to a purchaser of the Debt Securities, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of David L. Zoeller, Senior Vice President, General Counsel and
Secretary of the Company, or such other counsel for the Company
satisfactory to such of you as may be named in the applicable Terms
Agreement, in form and substance satisfactory to such of you as may be
named in the applicable Terms Agreement to the effect that:
(i) The applicable Indenture has been duly and validly
authorized, executed and delivered by the Company and constitutes the
valid and binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, reorganization, moratorium, fraudulent conveyance,
insolvency or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or
at law).
(ii) The Debt Securities are in the form contemplated by the
applicable Indenture, and have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated as
specified in the applicable Indenture and delivered against payment
pursuant to this Agreement, as supplemented by the applicable Terms
Agreement, will be valid and binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, reorganization, moratorium,
fraudulent conveyance, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by general equity
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim (or a foreign
currency judgment in respect of such claim) be converted into United
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<PAGE> 13
States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and will be entitled to the benefits of the
applicable Indenture.
(iv) The Debt Securities and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus and the
applicable Prospectus Supplement.
(v) The applicable Indenture is qualified under the 1939 Act.
(vi) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(vii) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or
issue dates (other than financial statements and supporting schedules
included therein or omitted therefrom, and the Trustee's Statement of
Eligibility on Form T-1 ("Form T-1") as to which such counsel need not
express an opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(viii) The information in the Prospectus under the caption
"United States Taxation" to the extent that such information
constitutes matters of law, summaries of legal matters, documents or
proceedings, or legal conclusions, has been reviewed by such counsel
and is correct in all material respects.
(ix) No authorization, approval, consent, order or decree of
any court or governmental authority or agency is required in connection
with the sale of the Debt Securities under this Agreement and the
applicable Terms Agreement other than as may be required under state
securities laws.
(x) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(xi) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement.
(xii) The Company is duly registered as a bank holding company
under the Bank Holding Company Act; to the best knowledge and
information of such counsel, after due investigation, the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify or be in good standing
would not have a Material Adverse Effect.
(xiii) Each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
continues to hold a valid certificate to do business as such and has
full power and authority to conduct business as such, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the
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<PAGE> 14
Registration Statement and, to the best knowledge and information of
such counsel, after due investigation, is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
have a Material Adverse Effect; and all of the issued and outstanding
capital stock of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable
(subject to the provisions of Section 55 of Title 12 of the United
States Code in the case of Significant Subsidiaries which are national
banking associations) and, to the best knowledge and information of
such counsel, after due investigation, is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xv) The Registration Statement, including any Rule 462(b)
Registration Statement, is effective under the 1933 Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the
best knowledge and information of such counsel, after due
investigation, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(xvi) Each document filed pursuant to the 1934 Act (other than
the financial statements and supporting schedules included therein or
omitted therefrom, as to which such counsel need express no opinion)
and incorporated by reference in the Prospectus complied when so filed
as to form in all material respects with the 1934 Act and the rules and
regulations thereunder.
(xvii) To the best knowledge and information of such counsel,
after due investigation, there are no legal or governmental proceedings
pending or threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein, and all
pending legal or governmental proceedings to which the Company or any
subsidiary of the Company is a party or to which any of their property
or assets is subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business of the Company or any such subsidiary, are not material.
(xviii) The information in the Prospectus under the captions
"Description of Debt Securities," "Senior Securities" and "Subordinated
Securities" and, with respect to the Prospectus Supplement relating to
the Debt Securities, any further description with respect to such Debt
Securities and, to the extent that such information constitutes matters
of law, summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(xix) To the best knowledge and information of such counsel,
after due investigation, there are no material contracts, indentures,
deposit agreements, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described
or referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references thereto are
correct, and no material default exists in the due performance or
observance of any material obligation, agreement, covenant or
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<PAGE> 15
condition contained in any contract, indenture, deposit agreement,
mortgage, loan agreement, note, lease or other instrument so described,
referred to, or filed or incorporated by reference.
(xxi) To the best knowledge and information of such counsel,
after due investigation, the execution and delivery of this Agreement,
the applicable Terms Agreement and the Indenture by the Company and the
consummation by the Company of the transactions contemplated herein and
therein, do not and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its Significant Subsidiaries pursuant to, any material contract,
indenture, deposit agreement, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any applicable law, or of any judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Significant Subsidiary or
any of its properties.
(2) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, with respect to the matters set forth in (i)-(iv)
inclusive and (vi), (ix), (x) and (xiii) of subsection (b)(1) of this
Section.
(3) In giving their opinions required by subsections (b)(1)
and (b)(2), respectively, of this Section, David L. Zoeller, Esq. and
Brown & Wood LLP shall each additionally state that nothing has come to
their attention that would lead them to believe that the Registration
Statement (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which such counsel need make no
statement) at the time it became effective, or if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed
by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of the most recent such
filing, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as
amended or supplemented at the date of the applicable Terms Agreement
and at Closing Time, contains an untrue statement of material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) At the applicable Closing Time there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings or business affairs
or which is reasonably likely to affect the business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and you shall have received a certificate of the
Chairman or the President or the Deputy Chairman or an Executive or Senior Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of such Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
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<PAGE> 16
warranties of the Company contained in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of such
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be complied with or satisfied at or prior to such
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(e) At the time of the execution of this Agreement and at the
applicable Closing Time, you shall have received from Ernst & Young LLP a letter
dated such date, in form and substance satisfactory to you, to the effect that
(i) they are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
applicable published rules and regulations thereunder; (ii) in their opinion the
consolidated financial statements and supporting schedules audited by them and
included or incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act and the related published rules and regulations with respect to
registration statement Form S-3 and the 1934 Act and the 1934 Act Regulations;
(iii) based upon limited procedures set forth in detail in such letter, nothing
has come to their attention which causes them to believe that (A) the unaudited
financial statements and supporting schedules of the Company and its
subsidiaries included in the Registration Statement and Prospectus do not comply
as to form in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations or are not fairly presented in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included
in the Registration Statement, (B) at a specified date not more than three days
prior to the date of such letter, there has been any change in the capital stock
of the Company or any increase in the consolidated long term debt of the Company
and its subsidiaries or any decrease in the total earning assets or total assets
of the Company and its subsidiaries, in each case as compared with the amounts
shown in the most recent balance sheet included in the Registration Statement
or, during the period from a specified date not more than three days prior to
the date of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in net interest income, net interest
income after provision for loan loss, non-interest income, net income or net
income per share of the Company and its subsidiaries as compared on the
corresponding period in the preceding year except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the examination
referred to in their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included in the Registration Statement and
Prospectus and which are specified by you and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter.
(f) At the applicable Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Debt Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy and completeness of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company at or prior to the Closing Time in
connection with the authorization, issuance and sale of the Debt Securities as
herein contemplated shall be reasonably satisfactory
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<PAGE> 17
in form and substance to you and counsel for the Underwriters.
(h) If the NASD is required to pass upon the fairness and
reasonableness of the underwriting terms and arrangements, at the applicable
Closing Time, the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by such of you as may be named in such Terms Agreement by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof. Notwithstanding any such termination,
the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. INDEMNIFICATION. (1) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration
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<PAGE> 18
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); PROVIDED FURTHER, that as
to any preliminary prospectus, this indemnity agreement shall not inure to the
benefit of any Underwriter or any person controlling that Underwriter on account
of any loss, claim, damage, liability or action arising from the sale of Debt
Securities to any person by that Underwriter if (i) that Underwriter failed to
send or give a copy of the Prospectus (excluding the documents incorporated by
reference therein), as the same may be amended or supplemented, to that person
within the time required by the Securities Act and (ii) the Company delivered to
that Underwriter a sufficient number of copies of the Prospectus pursuant to
Section 3(a)(1) hereof, and the untrue statement or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact in such
preliminary prospectus was corrected in the Prospectus.
(1)(2) Insofar as this indemnity agreement may permit
indemnification for liabilities under the 1933 Act of any person who is
a partner of an Underwriter or who controls an underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and
who, at the date of this Agreement, is a director or officer of the
Company or controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, such indemnity agreement is
subject to the undertaking of the Company in the Registration Statement
under Item 17 thereof.
(i) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a)(1) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(j) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants (including any impleaded
parties) in any such action include both the
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indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties at the expense of the indemnifying party or parties. After notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof and approval by such indemnified party of counsel appointed
to defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence or (ii) the indemnifying party has
authorized in writing the employment of counsel for the indemnified party at the
expense of the indemnifying party.
In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(k) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(1)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Section 7. CONTRIBUTION. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other
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hand from the offering of the Debt Securities pursuant to this Agreement or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Debt
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Debt
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Debt Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
Section 9. For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
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Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the principal amount of Debt Securities set forth
opposite their respective names in the applicable Terms Agreement and not joint.
Section 11. REPRESENTATIONS WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or any
Terms Agreement or contained in certificates of executive officers of the
Company submitted pursuant thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by or on behalf of the Company, and shall survive
delivery of the Debt Securities to the Underwriters.
Section 12. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated for any reason at any time by
either the Company or you upon the giving of 30 days' written notice of such
termination to the other party hereto. Such of you as may be named in any Terms
Agreement may also terminate such Terms Agreement, immediately upon notice to
the Company, at any time at or prior to the applicable Closing Time (i) if there
shall have been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business or (ii) if there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of such of you
as are named in such Terms Agreement, impracticable to market the Debt
Securities or to enforce contracts for the sale of the Debt Securities, or (iii)
if trading in any securities of the Company shall have been suspended by the
Commission or a national securities exchange, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange or in the NASDAQ
National Market shall have been suspended or materially limited, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal, New York, Ohio, Pennsylvania,
Indiana, Michigan or Illinois authorities, or (iv) if the rating assigned by any
nationally recognized statistical rating organization to any debt securities of
the Company as of the time any applicable Terms Agreement was entered into shall
have been lowered since that time or if any such rating organization shall have
publicly announced that it has placed any debt securities of the Company on what
is commonly termed a "watch list" for possible downgrading. In the event of any
such termination, (x) the covenants set forth in Section 3 with respect to any
offering of the Debt Securities shall remain in effect so long as any
Underwriter owns any such Debt Securities purchased from the Company pursuant to
the applicable Terms Agreement and (y) the covenant set forth in Section 3(h),
the provisions of Section 4, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7 and the provisions of Sections 8
and 13 shall remain in effect.
21
<PAGE> 22
Section 13. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters participating in an offering of Debt Securities shall fail at the
applicable Closing Time to purchase the Debt Securities which it or they are
obligated to purchase hereunder and under the applicable Terms Agreement (the
"Defaulted Securities"), then such of you as are named therein shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
nondefaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, during such 24 hours you shall
not have completed such arrangements for the purchase of all the Defaulted
Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Debt Securities to be purchased
pursuant to such Terms Agreement, the nondefaulting Underwriters named in such
Terms Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations bear to the
underwriting obligations of all nondefaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of Debt Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default by any Underwriter or Underwriters as
set forth in this Section, either you or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 14. NOTICES. All notices and other communications under this Agreement
and any Terms Agreement shall be in writing and shall be deemed to have been
duly given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to you at World
Financial Center, North Tower, New York, New York 10281, or in respect of any
Terms Agreement, to such other person and place as may be specified therein;
notices to the Company shall be directed to it at National City Corporation,
1900 East Ninth Street, Cleveland, Ohio 44114-3484, attention of Thomas A.
Richlovsky, Senior Vice President and Treasurer.
Section 15. PARTIES. This Agreement shall inure to the benefit of and be binding
upon you and the Company and any Underwriter who becomes a party to a Terms
Agreement, and their respective successors. Nothing expressed or mentioned in
this Agreement or a Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the parties hereto and thereto and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and
22
<PAGE> 23
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of the Debt Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 17. GOVERNING LAW AND TIME. This Agreement and each Terms Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said State.
Specified times of day refer to New York City time.
Section 18. EFFECT OF HEADINGS. The Article and Section headings herein are for
convenience only and shall not effect the construction hereof.
Section 19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
____________________________
23
<PAGE> 24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
NATIONAL CITY CORPORATION
By /s/ Thomas Richlovsky
---------------------------
Name: Thomas Richlovsky
Title: Senior Vice President and
Treasurer
Confirmed and accepted as of
the date first above written:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ G. Malpass Durkee
Name: G. Malpass Durkee
Title: Director
24
<PAGE> 25
Exhibit A
NATIONAL CITY CORPORATION
[Title of Securities]
TERMS AGREEMENT
---------------
Dated: , 199__
To: National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Re: Underwriting Agreement dated , 199_.
Dear Sirs:
We (the "Representative[s]") understand that National City Corporation, a
Delaware corporation (the "Company"), proposes to issue and sell $__________
aggregate principal amount of its [senior debt securities] [and] [subordinated
debt securities] (the "Debt Securities"). This Agreement is the Terms Agreement
referred to in the underwriting agreement dated _______________, 199__ (the
"Underwriting Agreement"). Subject to the terms and conditions set forth herein
or incorporated by reference herein, the Underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
amounts of Debt Securities set forth below.
Name of Principal Amount of
Underwriter Debt
Securities
----------
____________________
Total $___________________
<PAGE> 26
DEBT SECURITIES
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount, plus accrued
interest, if any, [or amortized original issue discount, if any,] from
, 19 .
Purchase price: % of the principal amount, plus accrued interest, if any, [or
amortized original issue discount, if any,] from , 19
(payable in next day funds).
Listing requirement: [None] [NYSE]
Closing date and location:
Additional representations, if any:
Lock-up provisions:
Other terms and conditions:
26
<PAGE> 27
Each Underwriter severally agrees, subject to the terms and provisions
of the above referenced Underwriting Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the principal amount of Debt
Securities set forth opposite its name.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in said State.
If the foregoing is in accordance with your understanding of the
agreement between you and the Company, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts and
together with the Underwriting Agreement, shall be a binding agreement between
the Underwriters named herein and the Company in accordance with its terms and
the terms of the Underwriting Agreement.
Very truly yours,
[Representative[s]]
By__________________________________________
Acting on behalf of themselves and the other
named Underwriters
Confirmed and accepted as of
the date first above written:
NATIONAL CITY CORPORATION
By:__________________________
Name and Title:
27
<PAGE> 1
Exhibit 1.2
NATIONAL CITY CORPORATION
6 7/8% Subordinated Notes Due May 15, 2019
Dated: April 28, 1999
To: National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114
Re: Underwriting Agreement dated April 28, 1999.
Dear Sirs:
We (the "Underwriters") understand that National City Corporation, a
Delaware corporation (the "Company"), proposes to issue and sell $700,000,000
aggregate principal amount of its subordinated debt securities (the "Debt
Securities"). This Agreement is the Terms Agreement referred to in the
underwriting agreement, dated April 28, 1999 (the "Underwriting Agreement"), the
terms and conditions of which are incorporated herein by reference. Each of the
representations and warranties set forth in the Underwriting Agreement shall be
deemed to have been made at and as of the date of this Terms Agreement.
Capitalized terms used herein but not defined shall have the meanings ascribed
thereto in the Underwriting Agreement.
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Underwriters named below offer to purchase, severally and
not jointly, the respective amounts of Debt Securities set forth below.
<TABLE>
<CAPTION>
Principal Amount of
Name of Underwriter Debt Securities
- ------------------- ---------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $350,000,000
Keefe, Bruyette & Woods, Inc. 87,500,000
NatCity Instruments, Inc. 87,500,000
PaineWebber Incorporated 87,500,000
Salomon Smith Barney Inc. 87,500,000
============
Total $700,000,000
</TABLE>
<PAGE> 2
The Debt Securities shall have the following terms:
<TABLE>
<S> <C>
Title of Debt Securities: 6 7/8% Subordinated Notes due May 15, 2019
Principal amount to be issued: $700,000,000
Senior or Subordinated: Subordinated
Currency: U.S. Dollars
Current Ratings: Moody's Investors Service, Inc.: A2
Standard & Poor's Ratings Services: A-
Interest rate or formula: 6 7/8% per annum
Interest payment dates: May 15 and November 15, commencing November 15, 1999
Date of Maturity: May 15, 2019
Redemption Provisions: None
Sinking Fund Requirements: None
Initial public offering price: 99.824% of the principal amount, plus accrued interest, if
any, from May 4, 1999
Underwriting Discount: .875% of the principal amount
Purchase price: 98.949% of the principal amount, plus accrued interest, if
any, from May 4, 1999 (payable in same day funds)
Listing requirement: None
Conversion provisions: None
Closing date and locations: May 4, 1999 in New York, NY
Additional representations, if any: None
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C>
Lock-up provisions: The Company may not issue, without the consent of the
Underwriters, any other debt securities between the date
hereof and the Closing Time.
Number of Options Securities, if any: None
</TABLE>
The following documents will be required at the Closing Time: Officers'
Certificate pursuant to Section 5(c) of the Underwriting Agreement; Legal
Opinions pursuant to Sections 5(1), (2) and (3) of the Underwriting Agreement; a
Comfort Letter pursuant to Section 5(d) of the Underwriting Agreement; and other
documents pursuant to Section 5(e) of the Underwriting Agreement.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and return to the
undersigned a counterpart hereof, whereupon this instrument, along with all
counterparts and together with the Underwriting Agreement, shall be a binding
agreement among the Underwriters named herein and the Company in accordance with
its terms and the terms of the Underwriting Agreement.
Very truly yours,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Keefe, Bruyette & Woods, Inc.
NatCity Instruments, Inc.
PaineWebber Incorporated
Salomon Smith Barney Inc.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ G. Malpass Durkee
-------------------------------
Authorized Signatory
3
<PAGE> 4
Confirmed and accepted as of the date first above written:
NATIONAL CITY CORPORATION
By: /s/ Thomas Richlovsky
-----------------------------------
Name: Thomas Richlovsky
Title: Senior Vice President
and Treasurer
4
<PAGE> 1
Exhibit 4.1
- --------------------------------------------------------------------------------
NATIONAL CITY CORPORATION,
Issuer
to
THE BANK OF NEW YORK,
Trustee
-----------------------
SENIOR INDENTURE
-----------------------
Dated as of April 30, 1999
Senior Debt Securities
- --------------------------------------------------------------------------------
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
Section 101. Definitions..................................................................................1
Act.............................................................................................2
Additional Amounts..............................................................................2
Affiliate.......................................................................................2
Authenticating Agent............................................................................2
Authorized Newspaper............................................................................2
Bank............................................................................................2
Bearer Security.................................................................................2
Board of Directors..............................................................................3
Board Resolution................................................................................3
Business Day....................................................................................3
Capital Stock...................................................................................3
Commission......................................................................................3
Company.........................................................................................3
Company Request and Company Order...............................................................3
Constituent Bank................................................................................3
Corporate Trust Office..........................................................................3
Corporation.....................................................................................3
Coupon..........................................................................................3
Defaulted Interest..............................................................................3
Dollars of $....................................................................................3
Event of Default................................................................................4
Government Obligations..........................................................................4
Holder..........................................................................................4
Indenture.......................................................................................4
Independent Public Accountants..................................................................4
Interest........................................................................................5
Interest Payment Date...........................................................................5
Legal Holiday...................................................................................5
Maturity........................................................................................5
Officers' Certificate...........................................................................5
Opinion of Counsel..............................................................................5
Original Issue Discount Security................................................................5
Outstanding.....................................................................................5
Paying Agent....................................................................................6
Person..........................................................................................6
Place of Payment................................................................................6
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Predecessor Security............................................................................7
Principal Consituent Bank.......................................................................7
Redemption Date.................................................................................7
Redemption Price................................................................................7
Registered Security.............................................................................7
Regular Record Date.............................................................................7
Responsible Officer.............................................................................7
Security or Securities..........................................................................7
Security Register and Security Registrar........................................................7
Special Record Date.............................................................................7
Stated Maturity.................................................................................7
Subsidiary......................................................................................8
Trust Indenture Act.............................................................................8
Trustee.........................................................................................8
United States...................................................................................8
United States Alien.............................................................................8
U.S. Depository or Depository...................................................................8
Vice President..................................................................................8
Voting Stock....................................................................................8
Section 102. Compliance Certificates and Opinions ........................................................9
Section 103. Form of Documents Delivered to Trustee.......................................................9
Section 104. Acts of Holders.............................................................................10
Section 105. Notices, etc., to Trustee and Company.......................................................12
Section 106. Notice to Holders; Waiver...................................................................12
Section 107. Language of Notices.........................................................................13
Section 108. Conflict with Trust Indenture Act...........................................................14
Section 109. Effect of Headings and Table of Contents....................................................14
Section 110. Successors and Assigns......................................................................14
Section 111. Separability Clause.........................................................................14
Section 112. Benefits of Indenture.......................................................................14
Section 113. Governing Law...............................................................................14
Section 114. Legal Holidays..............................................................................14
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.............................................................................15
Section 202. Form of Trustee's Certificate of Authentication.............................................15
Section 203. Securities in Global Form...................................................................15
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
ARTICLE THREE
THE SECURITIES
<S> <C> <C>
Section 301. Amount Unlimited; Issuable in Series........................................................16
Section 302. Denominations...............................................................................20
Section 303. Execution, Authentication, Delivery and Dating..............................................20
Section 304. Temporary Securities........................................................................22
Section 305. Registration, Transfer and Exchange.........................................................23
Section 306. Mutilated, Destroyed, Lost and Stolen Securities............................................26
Section 307. Payment of Interest; Interest Rights Preserved..............................................27
Section 308. Persons Deemed Owners.......................................................................29
Section 309. Cancellation................................................................................29
Section 310. Computation of Interest.....................................................................29
Section 311. CUSIP Numbers...............................................................................29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.....................................................30
Section 402. Application of Trust Money..................................................................31
Section 403. Satisfaction, Discharge and Defeasance of Securities of Any Series..........................32
ARTICLE FIVE
REMEDIES
Section 501. Events of Default...........................................................................34
Section 502. Acceleration of Maturity; Rescission and Annulment..........................................35
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.............................36
Section 504. Trustee May File Proofs of Claim............................................................37
Section 505. Trustee May Enforce Claims without Possession of Securities or Coupons......................38
Section 506. Application of Money Collected..............................................................38
Section 507. Limitation on Suits.........................................................................38
Section 508. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional
Amounts.....................................................................................39
Section 509. Restoration of Rights and Remedies..........................................................39
Section 510. Rights and Remedies Cumulative..............................................................39
Section 511. Delay or Omission Not Waiver................................................................40
Section 512. Control by Holders..........................................................................40
Section 513. Waiver of Past Defaults.....................................................................40
Section 514. Waiver of Stay or Extension Laws............................................................41
</TABLE>
iii
<PAGE> 5
<TABLE>
ARTICLE SIX
THE TRUSTEE
<S> <C> <C>
Section 601. Notice of Defaults..........................................................................41
Section 602. Certain Rights of Trustee...................................................................41
Section 603. Not Responsible for Recitals or Issuance of Securities......................................43
Section 604. May Hold Securities.........................................................................43
Section 605. Money Held in Trust.........................................................................43
Section 606. Compensation and Reimbursement..............................................................43
Section 607. Corporate Trustee Required; Eligibility; Conflicting Interests..............................44
Section 608. Resignation and Removal; Appointment of Successor...........................................44
Section 609. Acceptance of Appointment by Successor......................................................46
Section 610. Merger, Conversion, Consolidation or Succession to Business.................................47
Section 611. Appointment of Authenticating Agent.........................................................48
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders...................................50
Section 702. Preservation of Information; Communications to Holders......................................50
Section 703. Reports by Trustee..........................................................................50
Section 704. Reports by Company..........................................................................51
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate Etc., Only on Certain Terms.........................................52
Section 802. Successor Corporation Substituted for Company...............................................52
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders..........................................53
Section 902. Supplemental Indentures with Consent of Holders.............................................54
Section 903. Execution of Supplemental Indentures........................................................55
Section 904. Effect of Supplemental Indentures...........................................................55
Section 905. Conformity with Trust Indenture Act.........................................................56
Section 906. Reference in Securities to Supplemental Indentures..........................................56
</TABLE>
iv
<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE TEN
COVENANTS
<S> <C> <C>
Section 1001. Payment of Principal, Premium, if any, and Interest.........................................56
Section 1002. Maintenance of Office or Agency.............................................................56
Section 1003. Money for Securities Payments to Be Held in Trust...........................................57
Section 1004. Additional Amounts..........................................................................59
Section 1005. Statement as to Compliance; Notice of Certain Defaults......................................59
Section 1006. Limitation Upon Sale or Issuance of Capital Stock of Certain Subsidiaries...................60
Section 1007. Limitation on Liens.........................................................................61
Section 1008. Limitation on Certain Acquisitions..........................................................62
Section 1009. Payment of Taxes and Other Claims...........................................................62
Section 1010. Corporate Existence.........................................................................62
Section 1011. Waiver of Certain Covenants.................................................................62
Section 1012 Calculation of Original Issue Discount......................................................63
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article....................................................................63
Section 1102. Election to Redeem; Notice to Trustee.......................................................63
Section 1103. Selection by Trustee of Securities to be Redeemed...........................................63
Section 1104. Notice of Redemption........................................................................64
Section 1105. Deposit of Redemption Price.................................................................65
Section 1106. Securities Payable on Redemption Date.......................................................65
Section 1107. Securities Redeemed in Part.................................................................66
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article....................................................................66
Section 1202. Satisfaction of Sinking Fund Payments with Securities.......................................66
Section 1203. Redemption of Securities for Sinking Fund...................................................67
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article....................................................................67
</TABLE>
v
<PAGE> 7
<TABLE>
<CAPTION>
ARTICLE FOURTEEN
MEETINGS OF HOLDERS
<S> <C> <C>
Section 1401. Purposes for Which Meetings May Be Called...................................................68
Section 1402. Call, Notice and Place of Meetings..........................................................68
Section 1403. Persons Entitled to Vote at Meetings........................................................69
Section 1404. Quorum; Action..............................................................................69
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meeting..........................70
Section 1406. Counting Votes and Recording Action of Meetings.............................................70
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 1501. Securities in Foreign Currencies............................................................71
</TABLE>
vi
<PAGE> 8
NATIONAL CITY CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939,
AS AMENDED, AND SENIOR INDENTURE, DATED AS OF , 1999
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -----------------
<S> <C>
Section 310(a)(1)......................................... 607
(a)(2)......................................... 607
(a)(5)......................................... 607
(b)............................................ 607
Section 311(a)............................................ 604
(b)............................................ 604
(b)(2)......................................... 108
Section 312(a)............................................ 701, 702(a)
(b)............................................ 702(a)
(c)............................................ 702(b)
Section 313(a)............................................ 703(a), 703(b)
(b)(2)......................................... 108
(c)............................................ 703(c)
(d)............................................ 703(c)
Section 314(a)............................................ 704
(c)(1)......................................... 102
(c)(2)......................................... 102
(c)(3)......................................... 108
(e)............................................ 102
Section 315(a)............................................ 108
(b)............................................ 601
(c)............................................ 108
(d)............................................ 108
(d)(1)......................................... 108
(d)(2)......................................... 108
(d)(3)......................................... 108
(e)............................................ 108
Section 316(a)............................................ 104
(a)(1)(A)...................................... 512
(a)(1)(B)...................................... 513
(b)............................................ 508
(c)............................................ 104
Section 317(a)(1)......................................... 505
(a)(2)......................................... 504
(b)............................................ 1003
Section 318(a)............................................ 108
</TABLE>
- ---------------------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Senior Indenture.
<PAGE> 9
SENIOR INDENTURE, dated as of April 30, 1999 (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 THE BANK OF NEW YORK, a New York banking corporation, having its
principal office at 101 Barclay Street, Floor 21 West, New York, New York 10286,
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
and unsubordinated 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) 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;
<PAGE> 10
(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.
"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.
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<PAGE> 11
"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, or a duly authorized committee thereof, 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, means any day, other than a Saturday or a Sunday, that is
neither a Legal Holiday nor a day on which banking institutions are authorized
or required by law, regulation or executive order to close in The City of New
York.
"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 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.
"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 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.
"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 located at 101 Barclay Street, Floor 21 West, New York, New York 10286,
Attention: Corporate Trust Administration.
"CORPORATION" includes corporations, associations, companies
and business trusts.
"COUPON" means any interest coupon appertaining to a Bearer
Security.
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"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 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.
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"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 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 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
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<PAGE> 14
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, except to the extent provided in Section
403, with respect to which the Company has effected
defeasance and/or covenant defeasance pursuant to
Section 403 hereof; and
(iv) 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 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;
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.
"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.
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<PAGE> 15
"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 statements of condition 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".
"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 or her 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.
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<PAGE> 16
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"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.
"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.
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<PAGE> 17
"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.
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 Section 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
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<PAGE> 18
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture 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 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
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<PAGE> 19
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 such 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 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.
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(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.
(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 a
Responsible Officer of 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
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<PAGE> 21
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 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 Bearers 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 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)
payment of interest or any Additional Amounts or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, 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.
Dated: THE BANK OF NEW YORK,
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
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
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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 immediately preceding sentence 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 the immediately preceding sentence.
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.
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 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 of transfer of, or in exchange for, or in lieu
of, other Securities
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of the series pursuant to Section 304, 305, 306, 906 or 1107
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 or
delivery 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 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
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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 be surrendered for exchange 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) 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;
(13) if other than the principal amount thereof, the
portion of the principal amount of the Securities of the
series of 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;
(14) 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 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;
(15) 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
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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;
(16) 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;
(17) 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;
(18) 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 any of them,
whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth
herein;
(19) the applicability, if any, of Section 403 to the
Securities of the series and any provisions in modification
of, in addition to or in lieu of any of the provisions of
Section 403;
(20) if the Securities of the series or any of them
are to be issued upon the exercise of warrants, the time,
manner and place for such Securities to be authenticated and
delivered;
(21) 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;
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(22) 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;
(23) whether any of the Securities of a series shall
be issued as original Issue Discount Securities; and
(24) 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.
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, 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.
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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,
(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.
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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 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
or if the Trustee in good faith shall determine that such action would expose
the Trustee to personal liability to existing Holders.
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 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
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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 the Trustee 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
such 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 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
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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, 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 90
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
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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 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 or redemption 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.
No service charge shall be made for any registration of
transfer or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any
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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 or 1107 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, 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
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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 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
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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 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 on or 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
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 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 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 or exchange 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 returned to the Company
by the Trustee or the Security Registrar, as the case may be, upon a Company
Order. The Trustee shall promptly notify the Company of all cancelled
Securities.
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 360-day year of twelve 30-day months.
Section 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a
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convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
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 of such series specified in such Company Order (except as to any
surviving rights of registration of transfer or exchange of Securities 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
(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
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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 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 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.
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Section 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF
SECURITIES OF ANY SERIES.
If pursuant to Section 301 provision is made for defeasance of
Securities of any series pursuant to Section 403 the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) with respect to all Outstanding Securities of such series
and any Coupons appertaining thereto,
(i) the Company has deposited or caused to be
deposited with the Trustee, as trust funds in trust for such
purpose, an amount sufficient to pay and discharge the entire
indebtedness on all Outstanding Securities of such series for
principal (and premium, if any), any Additional Amounts, and
interest to the Stated Maturity or any Redemption Date as
contemplated by the penultimate paragraph of this Section 403,
as the case may be; or
(ii) with respect to any Series of Securities which
are denominated in United States dollars, the Company has
deposited or caused to be deposited with the Trustee, as
obligations in trust for such purpose, such amount of direct
obligations of, or obligations the timely payment of the
principal of and interest on which are fully guaranteed by,
the United States of America and which are not callable at the
option of the issuer thereof as will, together with the income
to accrue thereon without consideration of any reinvestment
thereof, be sufficient to pay and discharge the entire
indebtedness on all Outstanding Securities of such series for
principal (and premium, if any), any Additional Amounts, and
interest to the stated Maturity or any Redemption Date as
contemplated by the penultimate paragraph of this Section 403;
or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Securities of such series; and
(2) the Company has paid or caused to be paid all other sums
payable hereunder with respect to the Outstanding Securities of such
series; and
(3) the Company has delivered to the Trustee a certificate
signed by a nationally recognized firm of Independent Public
Accountants certifying as to the sufficiency of the amounts deposited
pursuant to subsections (A)(i) or (ii) of this Section for payment of
the principal (and premium, if any) and interest on the dates such
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payments are due, an Officers' Certificate and an Opinion of Counsel,
each such Certificate and opinion stating that no Event of Default or
event which with notice or lapse of time or both would become an Event
of Default with respect to such Securities shall have occurred and all
conditions precedent herein provided for relating to the satisfaction
and discharge of the entire indebtedness on all Outstanding Securities
of any such series have been complied with; and
(4) the Company has delivered to the Trustee
(A) a ruling from the Internal Revenue Service or an
opinion of independent counsel that the holders of the Securities of
such series will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount and in the
same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(B) if the Securities of such series are then listed
on the New York Stock Exchange, an Opinion of Counsel that the
Securities of such series will not be delisted as a result of the
exercise of this option.
Any deposits with the Trustee referred to in subsection (1)(A)
of this Section shall be irrevocable and shall be made under the terms of an
escrow trust agreement in form and substance satisfactory to the Trustee. If any
Outstanding Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption or repayment provisions or
in accordance with any mandatory sinking fund requirement, the Company shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
Upon the satisfaction of the conditions set forth in this
Section 403 with respect to all the Outstanding Securities of any series, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, other than the provisions of
Sections 305, 306, and 1002 and other than the right of Holders of Securities
and any Coupons of such series to receive, from the trust fund described in this
Section, payment of the principal (and premium, if any) of, the interest on or
any Additional Amounts with respect to such Securities and Coupons (if any)
appertaining thereto when such payments are due, and the rights, powers, duties
and immunities of the Trustee hereunder, shall no longer be binding upon, or
applicable to, the Company except those responsibilities and obligations which
by the terms of the Indenture survive the termination of the Indenture; PROVIDED
that the Company shall not be discharged from any payment obligations in respect
of Securities of such series which are deemed not to be Outstanding under clause
(iii) of the definition thereof if such obligations continue to be valid
obligations of the Company under applicable law.
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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) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of such series
when such interest becomes or Additional Amounts become due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (and premium,
if any, on) any Security of that series when it becomes due and payable
at Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities (other than
a covenant or warranty a default in the performance or the breach of
which is elsewhere in this Section specifically dealt with or which has
been expressly included in this Indenture solely for the benefit of a
series of Securities other than such series), and continuance of such
default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) if any event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which
there may be secured or evidenced, any indebtedness of the Company or
any Principal Constituent Bank for money borrowed, whether such
indebtedness now exists or shall hereafter be created, shall happen and
shall result in such indebtedness in principal amount in excess of
$25,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled, or such indebtedness
shall not have been discharged, within a period of 30 days after there
shall have been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the outstanding Securities of such
series, a written notice specifying such event of default and requiring
the Company to cause such acceleration to be rescinded or annulled or
to cause
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such indebtedness to be discharged and stating that such notice is a
"Notice of Default" hereunder; or
(6) 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,
and 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
(7) 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; or
(8) any other Event of Default provided with respect to
Securities of such series.
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
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Securities of such series,
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(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, other than the non-payment of the principal of Securities of
that series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(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 any Coupons appertaining thereto, the whole
amount then due and payable on such Securities and Coupons 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, 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
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law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to 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 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, 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 and,
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
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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 and
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 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;
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(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
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding 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.
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 such right shall not be impaired without the consent of
such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder 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.
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
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right or remedy herein conferred upon or reserved to the Trustee or to the
Holders 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 the Holders of Securities or Coupons
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Securities or Coupons, 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.
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 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.
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Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE 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 a Responsible Officer of 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; and PROVIDED further, that in
the case of default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default, with respect to Securities 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
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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 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 of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted 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 at the sole cost to the
Company and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation;
(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;
(h) the Trustee shall not be liable for any action taken,
suffered, omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
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(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act 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 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
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Trustee in writing (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 each of the Trustee and any predecessor
Trustee and its agents for, and to hold them harmless against, any
loss, liability or expense including taxes (other than taxes based
upon, measured by or determined by the income of the Trustee) 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
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.
The provisions of this Section 606 shall survive the
termination of this Indenture.
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.
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(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.
(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. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(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 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 Board Resolution, may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(c) 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 Board Resolutions, 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 the Securities of any series shall
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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 became 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 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
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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.
(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.
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Section 611. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or
Authenticating Agents 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 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.
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 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.
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Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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.
Dated: THE BANK OF NEW YORK,
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.
Section 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 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 May 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 May 15 and the date of this Indenture.
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(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 information, 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 of 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.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein,
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including the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers' Certificates).
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 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
Event of Default, and no event (including, without limitation, default
under Section 1006) which, after notice or lapse of time or both, would
become an Event of 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
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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.
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
hereto 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 one Trustee,
pursuant to the requirements of Section 609(b); or
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(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 Persons hereunder pursuant to the Trust
Indenture Act or under any similar federal statute hereafter enacted
and rules or regulations of the Commission thereunder.
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 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 shall, 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(l) and permitted by Section 901(l)), or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change 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
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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 1011, 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.
The Company may, but shall not be obligated to, fix a record
date for the purposes of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; PROVIDED, that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
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 and that it complies with the terms of 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.
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Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. REFERENCE IN 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.
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 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 or exchange and where notices and demands to or upon the company in
respect of the Securities of that series and this Indenture may be served. 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
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United States and such stock exchange shall so require, the Company will
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 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 City of Cleveland, Ohio, and initially appoints the office or agency
of the Company for such purpose. 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.
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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:
(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
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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) 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 related Coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
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 of principal (and
premium, if any) or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the 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 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), commencing December
31, 1999, a written statement, which need not
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comply with Section 102, signed by the Chairman of the Board, 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 obligations 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 became, 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 as soon as
possible, and in any event, 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. LIMITATION UPON SALE OR ISSUANCE OF CAPITAL
STOCK OF CERTAIN SUBSIDIARIES.
Except as set forth below, the Company will not sell, assign,
pledge, transfer or otherwise dispose of, or permit the issuance of, or permit a
Subsidiary to sell, assign, pledge, transfer or dispose of, any shares of
Capital Stock of any Subsidiary or any Securities convertible into Capital Stock
of any Subsidiary which is:
(a) a Principal Constituent Bank; or
(b) a Subsidiary which owns shares of Capital Stock or any
Securities convertible into Capital Stock of a Principal Constituent Bank;
PROVIDED, HOWEVER, nothing in this Section shall prohibit (i) any dispositions
made by the Company or any Subsidiary (A) acting in a fiduciary capacity for any
person other than the Company or any Subsidiary or (B) to the Company or any of
its wholly-owned Subsidiaries or (ii) the merger or consolidation of a Principal
Constituent Bank with and into a Constituent Bank or the merger or consolidation
of any Principal Constituent Bank with and into any other Principal Constituent
Bank.
Notwithstanding the foregoing, sales, assignments, pledges,
transfers, issuances or other dispositions of shares of Capital Stock of a
corporation referred to in Clause (a) or (b) above may be made where:
(i) the sales, assignments, pledges, transfers,
issuances or other dispositions are made, in the minimum
amount required by law, to any Person for the purpose of the
qualification of such Person to serve as a director; or
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(ii) the sales, assignments, pledges, transfers,
issuances or other dispositions are made in compliance with an
order of a court or regulatory authority of competent
jurisdiction or as a condition imposed by any such court or
authority to the acquisition by the Company, directly or
indirectly, of any other corporation or entity; or
(iii) in the case of a disposition or issuance of
shares of Capital Stock or any Securities convertible into
Capital Stock of a Principal Constituent Bank, or sales of
Capital Stock or any Securities convertible into Capital Stock
of any Subsidiary included in Clause (b) above, the sales,
assignments, pledges, transfers, issuances or other
dispositions are for fair market value (as determined by the
Board of Directors of the Company and the Subsidiary disposing
of such shares or Securities, such determination being
evidenced by a Board Resolution) and, after giving effect to
such disposition and to any potential dilution (if the shares
or Securities are convertible into Capital Stock), the Company
and its wholly-owned (except for directors' qualifying shares)
Subsidiaries, will own directly not less than 80% of the
Voting Stock of such Principal Constituent Bank or Subsidiary;
or
(iv) a Principal Constituent Bank sells additional
shares of Capital Stock to its stockholders at any price, so
long as immediately after such sale the Company owns, directly
or indirectly, at least as great a percentage of the Voting
Stock of such Principal Constituent Bank as it owned prior to
such sale of additional shares.
Section 1007. LIMITATION ON LIENS.
The Company will not pledge, mortgage or hypothecate, or
permit to exist any pledge, mortgage or hypothecation or other lien upon, any
shares of Capital Stock of a Constituent Bank to secure any indebtedness for
borrowed money without making effective provisions whereby the Securities shall
be equally and ratably secured with any and all such indebtedness.
In case the Company shall propose to pledge, mortgage, or
hypothecate any such shares of Capital Stock at any time owned by it to secure
any indebtedness, the Company will prior thereto give written notice thereof to
the Trustee and will prior to or simultaneously with such pledge, mortgage or
hypothecation, by supplemental indenture delivered to the Trustee, in form
satisfactory to it, effectively secure all the Securities equally and ratably
with such indebtedness, by pledge, mortgage or hypothecation of such shares of
Capital Stock. Such supplemental indenture shall contain the provisions
concerning the possession, control, release and substitution of mortgaged and
pledged property and Securities and other appropriate matters which are required
or are permitted by the Trust Indenture Act (as in effect at the date of
execution of such supplemental indenture) to be included in a secured indenture
qualified under said Trust Indenture Act, and may also contain such additional
and amendatory provisions permitted by said Trust Indenture Act as the Company
and the Trustee shall deem advisable or
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appropriate or as the Trustee shall deem necessary in connection with such
pledge, mortgage or hypothecation.
Section 1008. LIMITATION ON CERTAIN ACQUISITIONS.
The Company will not (a) acquire Capital Stock of any
corporation or (b) acquire substantially all the assets and liabilities of any
corporation, if, immediately upon giving effect to such acquisition, the Company
would not then be in full compliance with all the terms, conditions and
covenants contained in this Indenture.
Section 1009. 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.
Section 1010. 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 1011. 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, 1007, 1008 and 1009
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.
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Section 1012. CALCULATION OF ORIGINAL ISSUE DISCOUNT
The Company shall file with the Trustee promptly at the end
each calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
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, 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.
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.
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Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
the Holders of 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, as
to Bearer Securities, against tender of such Security and any Coupons
appertaining thereto, and, if applicable, that interest thereon and
Additional Amounts, if any, shall cease to accrue on and after said
date,
(6) the place or places where such Securities, together, in
the case of Bearer Securities with all Coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price,
(7) that the redemption is for a sinking fund, if such is the
case, and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section
106 need not identify particular Registered Securities to be redeemed.
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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.
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; 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.
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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 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.
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
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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, 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 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.
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
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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
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 purposes by giving notice thereof as provided
in subsection (a) of this Section.
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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 than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not present or represented at the meeting.
69
<PAGE> 78
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 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.
70
<PAGE> 79
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.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 1501. 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 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.
71
<PAGE> 80
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: /s/ Carlton E. Langer By /s/ Thomas Richlovsky
-------------------------------------
Name: Thomas Richlovsky
Title: Senior Vice President
and Treasurer
[SEAL] THE BANK OF NEW YORK, TRUSTEE
Attest: /s/ Robert Massimillo By /s/ Van K. Brown
--------------------------------------
Name: Van K. Brown
Title: Assistant Vice President
72
<PAGE> 81
STATE OF OHIO )
: ss.:
COUNTY OF CUYOHOGA )
On the 30th day of April, 1999, before me personally came
Thomas Richlovsky, to me known, who, being by me duly sworn, did depose and say
that he is a Senior Vice President 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.
/s/ David Paul Lewis
--------------------------
Notary Public
[NOTARIAL SEAL]
73
<PAGE> 82
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 30th day of April, 1999, before me personally came
Van K. Brown, to me known, who, being by me duly sworn, did depose and say that
he is an Assistant Vice President of THE BANK OF NEW YORK, a New York banking
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.
/s/ Robert Schneck
--------------------------
Notary Public
[NOTARIAL SEAL]
74
<PAGE> 1
Exhibit 4.2
- --------------------------------------------------------------------------------
NATIONAL CITY CORPORATION,
Issuer
to
THE BANK OF NEW YORK,
Trustee
---------------
SUBORDINATED INDENTURE
---------------
Dated as of April 30, 1999
Subordinated Debt Securities
- --------------------------------------------------------------------------------
<PAGE> 2
Reconciliation and tie between Trust Indenture Act of 1939, as amended,
and Subordinated Indenture, dated as of April 30, 1999
<TABLE>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C> <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>
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of this Subordinated Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties ................................................................................. 1
Recitals ................................................................................. 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION ................................................................. 1
Section 101. Definitions ........................................................... 1
Act ............................................................................. 2
Additional Amounts .............................................................. 2
Affiliate ....................................................................... 2
Authenticating Agent ............................................................ 2
Authorized Newspaper ............................................................ 2
Bank ............................................................................ 2
Bearer Security ................................................................. 3
Board of Directors .............................................................. 3
Board Resolution ................................................................ 3
Business Day .................................................................... 3
Capital Stock ................................................................... 3
Commission ...................................................................... 3
Common Stock .................................................................... 3
Company ......................................................................... 3
Company Request ................................................................. 3
Company Order ................................................................... 3
Constituent Bank ................................................................ 3
Corporate Trust Office .......................................................... 3
Corporation ..................................................................... 4
Coupon .......................................................................... 4
Defaulted Interest .............................................................. 4
Dollars or "$" .................................................................. 4
Event of Default ................................................................ 4
Government Obligations .......................................................... 4
Holder .......................................................................... 4
Indenture ....................................................................... 5
Independent Public Accountants .................................................. 5
Interest ........................................................................ 5
Interest Payment Date ........................................................... 5
Legal Holiday ................................................................... 5
Maturity ........................................................................ 5
Officers' Certificate ........................................................... 5
Opinion of Counsel .............................................................. 6
Original Issue Discount Security ................................................ 6
Outstanding ..................................................................... 6
Paying Agent .................................................................... 7
Person .......................................................................... 7
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Place of Payment ................................................................ 7
Predecessor Security ............................................................ 7
Principal Constituent Bank ...................................................... 7
Redemption Date ................................................................. 7
Redemption Price ................................................................ 7
Registered Security ............................................................. 8
Regular Record Date ............................................................. 8
Responsible Officer ............................................................. 8
Security or Securities .......................................................... 8
Security Register and Security Registrar ........................................ 8
Senior Indebtedness ............................................................. 8
Special Record Date ............................................................. 9
Stated Maturity ................................................................. 9
Subsidiary ...................................................................... 9
Trust Indenture Act ............................................................. 9
Trustee ......................................................................... 9
United States ................................................................... 9
United States Alien ............................................................. 9
U.S. Depository or Depository ................................................... 9
Vice President ..................................................................10
Voting Stock ....................................................................10
Section 102 Compliance Certificates and Opinions ..................................10
Section 103. Form of Documents Delivered to Trustee ................................10
Section 104. Acts of Holders ......................................................11
Section 105. Notices, Etc., to Trustee and Company ................................13
Section 106. Notice to Holders; Waiver .............................................14
Section 107. Language of Notices ..................................................15
Section 108. Conflict with Trust Indenture Act ....................................15
Section 109. Effect of Headings and Table of Contents .............................15
Section 110. Successors and Assigns ...............................................15
Section 111. Separability Clause ..................................................15
Section 112. Benefits of Indenture ................................................15
Section 113. Governing Law ........................................................15
Section 114. Legal Holidays ........................................................15
ARTICLE TWO SECURITIES FORMS ...........................................................16
Section 201. Forms Generally ......................................................16
Section 202. Form of Trustee's Certificate of Authentication .....................16
Section 203. Securities in Global Form .............................................16
ARTICLE THREE THE SECURITIES ...........................................................17
Section 301. Amount Unlimited; Issuable in Series .................................17
Section 302. Denominations ........................................................21
Section 303. Execution, Authentication, Delivery and Dating .......................21
Section 304. Temporary Securities .................................................23
Section 305. Registration, Transfer and Exchange ..................................24
Section 306. Mutilated, Destroyed, Lost and Stolen Securities .....................27
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Section 307. Payment of Interest; Interest Rights Preserved ...................28
Section 308. Persons Deemed Owners .............................................30
Section 309. Cancellation ....................................................30
Section 310. Computation of Interest ..........................................31
Section 311. CUSIP Numbers ....................................................31
ARTICLE FOUR SATISFACTION AND DISCHARGE ...........................................31
Section 401. Satisfaction and Discharge of Indenture ..........................31
Section 402. Application of Trust Money .......................................33
ARTICLE FIVE REMEDIES 33
Section 501. Events of Default ................................................33
Section 502. Acceleration of Maturity; Rescission and Annulment ...............34
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ...........................................35
Section 504. Trustee May File Proofs of Claim ................................36
Section 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons ..............................37
Section 506. Application of Money Collected ...................................37
Section 507. Limitation on Suits ...............................................37
Section 508. Unconditional Right of Holders to Receive
Principal, Premium, Interest and Additional
Amounts ..........................................................38
Section 509. Restoration of Rights and Remedies ................................38
Section 510. Rights and Remedies Cumulative ..................................38
Section 511. Delay or Omission Not Waiver ....................................39
Section 512. Control by Holders ...............................................39
Section 513. Waiver of Past Defaults .........................................39
Section 514. Waiver of Stay or Extension Laws .................................40
ARTICIX THE TRUSTEE ................................................................40
Section 601. Notice of Defaults ................................................40
Section 602. Certain Rights of Trustee ........................................40
Section 603. Not Responsible for Recitals or Issuance of Securities ...........42
Section 604. May Hold Securities ..............................................42
Section 605. Money Held in Trust ..............................................42
Section 606. Compensation And Reimbursement ....................................42
Section 607. Corporate Trustee Required; Eligibility;
Conflicting Interests ............................................43
Section 608. Resignation and Removal; Appointment of Successor ................43
Section 609. Acceptance of Appointment by Successor ............................45
Section 610. Merger, Conversion, Consolidation or
Succession to Business ............................................46
Section 611. Appointment of Authenticating Agent ..............................47
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY ............................................49
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Section 701. Company to Furnish Trustee Names and
Addresses of Holders ..............................................49
Section 702. Preservation of Information; Communications to Holders ..........50
Section 703. Reports by Trustee ...............................................50
Section 704. Reports by Company ...............................................50
ARTICLE EIGHT CONSOLIDATION, MERGER AND SALES ........................................51
Section 801. Company May Consolidate, Etc., Only on Certain Terms ..............51
Section 802. Successor Corporation Substituted for Company ....................52
ARTICLE NINE SUPPLEMENTAL INDENTURES ...............................................53
Section 901. Supplemental Indentures Without Consent Of Holders ...............53
Section 902. Supplemental Indentures with Consent of Holders ..................54
Section 903. Execution of Supplemental Indentures .............................56
Section 904. Effect of Supplemental Indentures ................................56
Section 905. Conformity with Trust Indenture Act ..............................56
Section 906. Reference in Securities to Supplemental Indentures ..............56
Section 907. Subordination Unimpaired .........................................56
ARTICLE TEN COVENANTS ...............................................................57
Section 1001. Payment of Principal, Premium, if any, and Interest ..............57
Section 1002. Maintenance of Office or Agency .................................57
Section 1003. Money For Securities Payments to Be Held In Trust ................58
Section 1004. Additional Amounts ...............................................60
Section 1005. Statement as to Compliance; Notice of Certain Defaults ...........60
Section 1006. Payment of Taxes And Other Claims ................................61
Section 1007. Corporate Existence ..............................................61
Section 1008. Waiver of Certain Covenants ......................................62
Section 1009. Calculation of Original Issue Discount ...........................62
ARTICLE ELEVEN REDEMPTION OF SECURITIES ..........................................62
Section 1101. Applicability of Article .........................................62
Section 1102. Election to Redeem; Notice to Trustee ...........................62
Section 1103. Selection by Trustee of Securities to Be Redeemed ................62
Section 1104. Notice of Redemption ............................................63
Section 1105. Deposit of Redemption Price ......................................64
Section 1106. Securities Payable on Redemption Date ............................64
Section 1107. Securities Redeemed in Part ......................................65
ARTICLE TWELVE SINKING FUNDS ......................................................65
Section 1201. Applicability of Article .........................................65
Section 1202. Satisfaction of Sinking Fund Payments With Securities ............66
Section 1203. Redemption of Securities for Sinking Fund .........................66
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS .................................67
Section 1301. Applicability of Article .........................................67
</TABLE>
iv
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE FOURTEEN MEETINGS OF HOLDERS ...............................................67
Section 1401. Purposes For Which Meetings May Be Called .......................67
Section 1402. Call, Notice And Place of Meetings ................................67
Section 1403. Persons Entitled to Vote at Meetings .............................68
Section 1404. Quorum; Action ..................................................68
Section 1405. Determination of Voting Rights; Conduct
And Adjournment of Meetings ......................................69
Section 1406. Counting Votes and Recording Action of Meetings ..................70
ARTICLE FIFTEEN SUBORDINATION ......................................................70
Section 1501. Securities Subordinated to Senior Indebtedness ....................70
Section 1502. Subrogation ......................................................73
Section 1503. Obligation of Company Unconditional ..............................73
Section 1504. Payments on Securities Permitted ................................74
Section 1505. Effectuation of Subordination by Trustee .........................74
Section 1506. Knowledge of Trustee .............................................74
Section 1507. Trustee's Relation to Senior Indebtedness .......................74
Section 1508. Rights of Holders of Senior Indebtedness Not Impaired ............75
</TABLE>
v
<PAGE> 8
SUBORDINATED INDENTURE, dated as of April 30, 1999 (the "Indenture"),
among NATIONAL CITY CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (the "Company"), having its principal office
at 1900 East Ninth Street, Cleveland, Ohio 44114, and THE BANK OF NEW YORK, a
New York banking corporation, having its principal office at 101 Barclay Street,
Floor 21 West, New York, New York 10286, as Trustee (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 (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) 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
<PAGE> 9
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; and
(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.
Certain terms which are 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.
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.
"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,
or
(ii) any trust company organized under any of the foregoing laws.
2
<PAGE> 10
"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, or any duly authorized committee thereof, 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, means any day, other than a Saturday or a Sunday, that is neither a
Legal Holiday nor a day on which banking institutions are authorized or required
by law, regulation or executive order to close in The City of New York.
"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 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.
"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 101 Barclay Street,
Floor 21 West, New York, New York 10286, Attention: Corporate Trust
Administration.
3
<PAGE> 11
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 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
(iii) 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 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
4
<PAGE> 12
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 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 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.
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"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 canceled 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;
and
(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 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;
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,
(a) 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
(b) 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
(c) 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
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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.
"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".
"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
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matter, any other officer to whom such matter is referred because of his or her
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:
(i) the principal and any premium or interest for money borrowed
or purchased by the Company;
(ii) the principal and any premium or interest for money borrowed
or purchased by another Person and guaranteed by the Company;
(iii) any deferred obligation for the payment of the purchase price
of property or assets evidenced by a note or similar
agreement;
(iv) an obligation arising from direct credit substitutes; and
(v) any obligation associated with derivative products such as
interest and foreign exchange rate contracts, commodity
contracts and similar arrangements;
in each case, whether outstanding on the date this Subordinated Indenture
becomes effective, or created, assumed or incurred after that date.
Senior Indebtedness excludes any indebtedness that:
(a) expressly states that it is junior to, or ranks equally in
right of payment with, the Securities; or
(b) is identified as junior to, or equal in right of payment with,
the Securities in any Board Resolution or in any supplemental
indenture.
"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.
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"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.
"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 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.
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
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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 Section 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 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.
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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 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
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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 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.
(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
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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 a
Responsible Officer of 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 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,
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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.
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.
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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) 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.
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.
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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.
Dated: THE BANK OF NEW YORK
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
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 immediately preceding sentence 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 immediately
preceding sentence.
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 (1) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (2) 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 or 1107 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,
(a) 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,
(b) the name of the depository or the U.S. Depository, as
the case may be, with respect to any global Security
and
(c) the 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;
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(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 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) 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;
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(13) 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;
(14) if other than such currency of the United States of America as
at the time of payment is legal tender for payment of public
or private debts, the currency, composite currencies or
currency 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;
(15) 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 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;
(16) 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;
(17) 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;
(18) 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 any of them, whether or not
such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(19) 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;
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(20) 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
(21) whether any of the Securities of a series shall be issued as
Original Issue Discount Securities; and
(22) 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.
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 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
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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,
(1) 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
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Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee or if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken or if the Trustee in good faith shall determine that
such action would expose the Trustee to personal liability to existing Holders.
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 canceled.
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 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
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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 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
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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
(1) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date,
or
(2) 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, 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
(1) 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,
(2) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so
exchangeable, or
(3) 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
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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 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 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.
However, 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. 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
(1) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date,
or
(2) 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.
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
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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.
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, or 1107 not
involving any transfer.
Except as otherwise specified as contemplated by Section 301, the
Company shall not be required
(1) 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
(2) 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
(3) 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
(4) 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
(1) evidence to their satisfaction of the destruction, loss or
theft of any Security or Coupon, and
(2) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless,
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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, 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. However, 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. 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 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
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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. 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. When deposited,
such money will be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as provided in
this Clause (1). The Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special
Record Date. 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 or her 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.
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(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 (2), 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.
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,
and for all other purposes whatsoever, whether or not any payment with respect
to such Registered Security be overdue. Neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof, and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon be overdue. 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 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. 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
canceled 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. All Securities so
delivered shall be promptly canceled 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 canceled as provided in this Section, except as
expressly permitted by this Indenture or as otherwise specified as contemplated
by Section 301. All canceled Securities and Coupons held by the Trustee or the
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Security Registrar shall be returned to the Company by the Trustee or the
Security Registrar, as the case may be, upon a Company Order. The Trustee shall
promptly notify the Company of all canceled Securities.
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.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
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
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). 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,
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(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
(B)(i) or (ii) below, any such Coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) 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 (B)(i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
funds in trust, lawful money of the United States or
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
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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 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, the principal (and
premium, if any) and any interest or any Additional Amounts for whose payment
such money has been deposited with the Trustee. 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, and 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
(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
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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 Five 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
(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
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(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. In addition, the Company shall pay to the Trustee 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
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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
(1) 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, its
agents or counsel) and of the Holders allowed in such judicial
proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same.
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. In
case of the distribution of such money on account of principal (and premium, if
any), interest or any Additional Amounts, upon
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presentation of the Securities or Coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee 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 indemnity
reasonable to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding
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.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS.
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. 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.
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. 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
Five 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
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(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.
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. 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. The Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE 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 a Responsible Officer of the Trustee,
unless such default shall have been cured or waived.
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However, 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:
(1) 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;
(2) 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;
(3) whenever in the administration of this Indenture, the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(5) 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;
(6) 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
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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 at the sole cost of the
Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(7) 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;
(8) the Trustee shall not be liable for any action taken,
suffered, omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture;
(9) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by
the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Securities and this Indenture; and
(10) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and to
each agent, custodian and other Person employed to act
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. 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 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.
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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 in writing (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 each of the Trustee and any predecessor Trustee
and its agents for, and to hold them harmless against, any
loss, liability or expense including taxes (other than taxes
based upon, measured by or determined by the income of the
Trustee) 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 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.
The provisions of this Section 606 shall survive the termination of
this Indenture.
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
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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.
(1) 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.
(2) 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.
(3) 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. If an
instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving
of such notice of removal, the Trustee being removed may
petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(4) If at any time:
(a) 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
(b) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request
therefor by the Company or by any such Holder of a
Security, or
(c) 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
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(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.
(5) 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 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.
(6) 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.
If Securities of such series are issued as Bearer Securities,
the Company shall publish 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.
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SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) 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. 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 retiring Trustee hereunder, subject nevertheless to its claim, if
any, provided for in Section 606.
(2) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates,
(b) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee, and
(c) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder
by more than one Trustee.
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,
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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.
(3) 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 (1) or (2) of this Section, as the case may be.
(4) 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 Six.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Without the execution or filing of any paper or any further act on the
part of any of the parties hereto,
(1) any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or
(2) any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or
(3) any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such corporation
shall be otherwise qualified and eligible under this Article Six. 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 pursuant to Section
306. 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
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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.
Each Authenticating Agent shall be acceptable to the Company and,
except as specified as contemplated by Section 301, shall at all times
(1) 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,
(2) be authorized under applicable law and by its charter to act
as such and
(3) have 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).
Without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent,
(a) any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or
(b) any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or
(c) 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.
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. At such time, the Trustee shall
also
(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
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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, 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.
Dated: THE BANK OF NEW YORK,
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
(1) 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
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
provided, however, that 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.
(1) The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
(2) 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.
SECTION 703. REPORTS BY TRUSTEE.
(1) Within 60 days after May 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.
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(2) The Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the times specified therein.
(3) 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 information, 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;
(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.
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Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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). However:
(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 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 Eight and that all
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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.
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
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(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 one Trustee, pursuant to the
requirements of Section 609(2); 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 modify, delete or add to any of the provisions of this
Indenture other than as contemplated by clauses (1) through
(9) 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 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. However, 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 any Security,
(2) any installment of interest on, any Security,
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(3) reduce the principal amount of any Security or the rate of
interest thereon or any Additional Amounts payable in respect
thereof,
(4) any premium payable upon the redemption thereof,
(5) 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)),
(6) 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,
(7) the amount thereof provable in bankruptcy pursuant to Section
504,
(8) change the Place of Payment currency in which any Security or
any premium or the interest thereon is payable,
(9) 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),
(10) 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,
(11) modify any of the provisions of this Section, or Sections 512,
513 or Section 1008, except to increase any such percentage or
to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby, or
(12) modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the
Holders.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
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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 Nine 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
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes.
Every Holder of a Security theretofore or thereafter authenticated and delivered
hereunder and of any Coupons appertaining thereto shall be bound by such
supplemental indenture.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in effect.
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 Nine 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 Nine 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
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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 such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States)
(1) may be presented or surrendered for payment,
(2) where Securities of that series may be surrendered for
registration of transfer or exchange, and
(3) 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).
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
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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. 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. 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 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. However, 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 of the Trustee. 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.
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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:
(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. 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. 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. However, 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) 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
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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 any premium is made,
and at least 10 days prior to each date of payment or principal and any premium
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. 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
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.
(1) 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), commencing December 31,
1999, 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
(a) a review of the activities of the Company during such year and
of performance under this Indenture has been made under his
supervision, and
(b) to the best of his knowledge, based on such review,
(i) 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
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obligation, specifying each such default known to him
and the nature and status thereof, and
(ii) 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.
(2) The Company will deliver to the Trustee as soon as possible, and in
any event, 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. However, 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.
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. However, 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.
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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.
SECTION 1009. CALCULATION OF ORIGINAL ISSUE DISCOUNT
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
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 Eleven.
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, 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. However, no such
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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.
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 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) the CUSIP number, if any,
(4) 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,
(5) 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,
(6) 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,
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that interest and Additional Amounts, if any, thereon shall
cease to accrue on and after said date,
(7) the place or places where such Securities, together, in the
case of Bearer Securities with all Coupons appertaining
thereto, if any, maturing after 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.
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. However, 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). Furthermore, 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
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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. However,
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). 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 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.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article Twelve 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.
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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, 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 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. However, 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.
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. The
Company 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.
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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 canceled. 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
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
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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 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 than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly
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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
chairperson 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 chairperson. A
permanent chairperson and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him or her. However, no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairperson of the meeting to be not Outstanding. The
chairperson of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 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.
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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 chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of 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 chairperson and secretary of the meeting and one
such copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
SUBORDINATION
SECTION 1501. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of Securities, by its
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:
(1) 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
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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;
(2) 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 (1) or the following clause (3) 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. However, 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
(3) 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
(a) 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(3) in any twelve months
period, or
(b) 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
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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(3), 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 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.
The Trustee shall be entitled to conclusively rely on the delivery to
it of a written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee or agent on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee or
agent on behalf of any such holder). 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. 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 virtue of this Article
Fifteen which otherwise would have been made to the
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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,
(1) is intended to or shall impair as between 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
(2) 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, or
(3) 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.
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.
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SECTION 1505. EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Securities, by his or her acceptance thereof, authorizes
and directs the Trustee in his or her 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 or her 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 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 Fifteen 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 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.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Fifteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
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.
72
<PAGE> 80
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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
NATIONAL CITY CORPORATION
Attest:
/s/ Carlton E. Langer By /s/ Thomas A. Richlovsky
- ------------------------------- -----------------------------------
Name: Thomas A. Richlovsky
[SEAL] Title: Senior Vice President and
Treasurer
THE BANK OF NEW YORK
By /s/ Van K. Brown
-----------------------------------
Name: Van K. Brown
Title: Assistant Vice President
73
<PAGE> 81
STATE OF OHIO )
:
COUNTY OF CUYAHOGA )
On the 28th day of April, 1999, before me personally came Thomas A.
Richlovsky, to me known, who, being by me duly sworn, did depose and say that he
is a Senior Vice President 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.
[NOTARIAL SEAL] /s/ David Paul Lewis
---------------------------------
Notary Public
74
<PAGE> 82
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of ________, 1999, before me personally came
Van K. Brown, to me known, who, being by me duly sworn, did depose and say that
he is an Assistant Vice President of THE BANK OF NEW YORK, a New York banking
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.
/s/ Robert Schneck
--------------------------
Notary Public
[NOTARIAL SEAL]
75
<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. 1
CUSIP 635405 AM5
NATIONAL CITY CORPORATION
6 7/8% SUBORDINATED NOTE DUE MAY 15, 2019
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 TWO HUNDRED MILLION
DOLLARS ($200,000,000) on May 15, 2019 at the office or agency of the Company
referred to below, and to pay interest thereon from May 4, 1999, or from the
most recent date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15 (each, an "Interest Payment Date") in
each year, commencing on November 15, 1999, at the rate of 6 7/8% 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 May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date; provided that,
<PAGE> 2
interest at maturity shall be payable to the person to whom principal is
payable. 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 notes designated as "6 7/8%
Subordinated Notes Due 2019" (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 the corporate seal.
NATIONAL CITY CORPORATION
By: /s/ Robert G. Siefers
-------------------------
Vice Chairman and Chief
Financial Officer
Attest:
By: /s/ David Zoeller [SEAL]
----------------------------------
Secretary
Dated: May 4, 1999
Trustee's Certificate of Authentication: This is
one of the series designated therein, referred to
in the within-mentioned Indenture.
The Bank of New York, as Trustee
By: /s/ Van K. Brown
----------------------------------
Authorized Signatory
3
<PAGE> 4
NATIONAL CITY CORPORATION
6 7/8% SUBORDINATED NOTE DUE MAY 15, 2019
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 April 30,
1999 between the Company and The Bank of New York, 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 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
4
<PAGE> 5
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 from 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, 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.
5
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3, as amended, and related Prospectus, dated
April 28, 1999, of National City Corporation for the registration of $1 billion
of Senior and Subordinated Debt Securities and to the incorporation by reference
therein of our report dated January 21, 1999, with respect to the consolidated
financial statements of National City Corporation included in its Annual Report
(Form 10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
April 28, 1999
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
The Board of Directors
National City Corporation:
We consent to the use of our report relating to First of America Bank
Corporation incorporated by reference in this Amendment No. 1 to Form S-3 (No.
333-71207) and to the reference of our firm under the heading "Experts" in the
prospectus.
/s/ KPMG LLP
Chicago, Illinois
April 28, 1999
