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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 5, 1999
REGISTRATION NO. 333-71207
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION
UNDER
THE SECURITIES ACT OF 1933
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NATIONAL CITY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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Delaware 34-1111088
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
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NATIONAL CITY CENTER
1900 EAST NINTH STREET
CLEVELAND, OHIO 44114-3484
216/575-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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DAVID L. ZOELLER
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
NATIONAL CITY CORPORATION
1900 EAST NINTH STREET
CLEVELAND, OHIO 44114-3484
216/575-2978
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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Copies to:
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CHRISTOPHER M. KELLY DANIEL M. ROSSNER
JONES, DAY, REAVIS & POGUE BROWN & WOOD LLP
NORTH POINT ONE WORLD TRADE CENTER
901 LAKESIDE AVENUE NEW YORK, NEW YORK 10048
CLEVELAND, OHIO 44114
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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If this form is a post-effective amendment filed pursuant to rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SEC, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE WILL
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION BECOMES EFFECTIVE. WE ARE NOT MAKING THIS
OFFER TO PURCHASE SECURITIES IN ANY STATE OR JURISDICTION WHERE THE OFFER OR
SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MARCH 5, 1999
PROSPECTUS
NATIONAL CITY CORPORATION
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$1,000,000,000
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
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We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
The securities offered hereby are not savings accounts or savings deposits.
These securities are not insured by the Federal Deposit Insurance Corporation or
any governmental agency.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY
STATE SECURITIES COMMISSION. NONE OF THESE ORGANIZATIONS HAVE DETERMINED WHETHER
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS COMPLETE OR ACCURATE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1999
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TABLE OF CONTENTS
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PAGE
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Where You Can Find More Information......................... 3
Incorporation of Information We File With the SEC........... 3
National City Corporation................................... 4
Use of Proceeds............................................. 6
Ratio of Earnings to Fixed Charges.......................... 6
Description of the Securities............................... 6
Senior Debt Securities...................................... 12
Subordinated Debt Securities................................ 12
United States Taxation...................................... 13
Limitations on Issuance of Bearer Securities................ 17
Plan of Distribution........................................ 18
Legal Opinions.............................................. 19
Experts..................................................... 19
</TABLE>
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You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
any person to provide you with different information. If anyone else provides
you with different information, you should not rely on it. We are not making an
offer to sell these securities in any jurisdiction where such offer or sale is
not permitted.
You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of the document.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission (the "SEC"). You may
read and copy any document we file with the SEC at the SEC's Public Reference
Room, located at 450 Fifth Street, N.W., Washington, DC 20549. The SEC also
maintains public reference rooms in New York, New York and Chicago, Illinois.
You can call the SEC at 1-800-SEC-0330 for further information about the public
reference rooms. Our SEC filings are also available from the SEC's Web site at
http://www.sec.gov.
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to incorporate information we file with the SEC by
reference into this prospectus. Important information will be disclosed to you
in the incorporated documents. We are incorporating the following documents by
reference into this prospectus, as well as any future filings we make under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, until
this offering is completed:
- Annual Report on Form 10-K for the year ended December 31, 1998 and the
1998 Annual Report to Stockholders (but only to the extent that the
annual report is expressly incorporated by reference into the Form 10-K).
- Current Report on Form 8-K, filed on February 2, 1999.
You may request a free copy of any filings referred to above (excluding
exhibits) by writing or telephoning us at:
National City Corporation
National City Center
1900 East Ninth Street
Cleveland, Ohio 44114-3484
Attention: Thomas A. Richlovsky,
Senior Vice President and Treasurer
216/575-2126
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NATIONAL CITY CORPORATION
We are a multibank holding company and own all of the outstanding capital
stock of 7 commercial banks. We have a total of 1,301 banking offices in Ohio,
Michigan, Pennsylvania, Kentucky, Indiana and Illinois. As of December 31, 1998,
our consolidated total assets were $88.2 billion and our common stockholders'
equity was $6.98 billion. Based on asset size, we are the 11th largest
commercial banking organization in the United States.
Listed below are our principal banking subsidiaries:
National City Bank
National City Bank of Michigan/Illinois
National City Bank of Pennsylvania
National City Bank of Kentucky
National City Bank of Indiana
We offer a wide range of financial services through our subsidiaries. These
services include traditional commercial and retail bank services, consumer
finance, personal trust, investment management, brokerage services, investment
banking, institutional trust, mortgage services, credit card services, and
transaction processing.
On March 30, 1998, we acquired Fort Wayne National Corporation. We acquired
First of America Bank Corporation on March 31, 1998. We accounted for the Fort
Wayne National Corporation acquisition as a purchase and we accounted for the
First of America Bank Corporation acquisition as a pooling of interests. For
more detail on these acquisitions and their impact on our financial statements,
please review our Annual Report on Form 10-K for the year ended December 31,
1998.
We are a legal entity separate and distinct from our subsidiary banks and
other subsidiaries. A substantial portion of our cash revenue is received from
our subsidiary banks in the form of cash dividends. Federal law limits the
manner and amount of funding that our subsidiary banks may provide to us. The
bank subsidiaries are limited as to the dividends they are allowed to pay. The
type and amount of any security required to be pledged for any loans from our
subsidiary banks to us is dictated by Section 23A of the Federal Reserve Act.
In any given year, each of our subsidiary banks may not pay dividends in an
amount that exceeds (a) that bank's net profits for the current year plus (b)
its retained net profits for the preceding two calendar years. This limitation
on dividends may only be exceeded if the bank has received prior approval of the
Comptroller of the Currency. Because of this limitation, as of January 1, 1999,
our subsidiary banks could not have paid to us a dividend of more than $904.6
million without the approval of the Comptroller of the Currency. Each of our
subsidiary banks must meet various capital requirements. These capital
requirements may further limit the amount of dividends that a subsidiary bank
may pay to us. In addition, the Comptroller of the Currency has authority to
prohibit payment of a dividend by any of our subsidiary banks if the payment
constitutes what, in its opinion, is an unsafe and unsound banking practice.
The total of all loans each subsidiary bank may make to us cannot exceed
10% of the capital stock and surplus of that bank. All loans made to us must be
secured with collateral having a market value of at least 100% to 130% of the
amount of the loan. The required amount of collateral depends on the type of
assets that are pledged.
The Financial Institutions Reform, Recovery and Enforcement Act of 1989
imposes various liabilities on our subsidiary banks. Each of our subsidiary
banks is liable to the Federal Deposit Insurance Corporation (commonly referred
to as the FDIC) for any losses it may incur as a result of the failure or near
failure of any of our other subsidiary banks. Depositor claims of each of the
non-failing banks and general creditors of each of those banks would be paid
prior to any claims of the FDIC. In addition to the above requirements, the
Federal Reserve Board has a policy which requires us to act as a source of
financial strength to our subsidiary banks. This policy could require us to use
our funds and assets to support any of our subsidiary banks that might
experience financial trouble.
We and our banking subsidiaries are required to meet various capital
requirements. Failure to meet the minimum capital requirements can result in:
- our being denied the right to acquire existing companies or establish new
companies,
- our subsidiary banks being limited in their ability to pay dividends,
- our subsidiary banks being required to raise additional capital,
- an increase in the deposit insurance premiums payable to the FDIC and
- the potential loss of deposit insurance.
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We and our subsidiary banks have consistently maintained capital levels at
or above the "well capitalized" level. The "well capitalized" standard is the
highest regulatory standard.
The monetary policies and regulation imposed on us and our subsidiary banks
have a significant effect on our operating results. We cannot predict the impact
that future monetary policy or bank regulation will have on us.
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We are a Delaware corporation and our executive offices are located at
National City Center, 1900 East Ninth Street, Cleveland, Ohio 44114-3484. Our
telephone number is 216/575-2000.
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USE OF PROCEEDS
The net proceeds we receive from the sale of the securities offered under
this prospectus and any supplement will be added to our general funds to be used
for general corporate purposes, including investments in or advances to existing
or future subsidiaries. If we decide to use any proceeds for a different
purpose, we will specify that purpose in the appropriate prospectus supplement.
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following are the consolidated ratios of earnings to fixed charges and
preferred stock dividends for each of the years in the five-year period ended
December 31, 1998.
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YEAR ENDED DECEMBER 31,
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1998 1997 1996 1995 1994
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Ratio of Earnings to Fixed Charges and Preferred Stock
Dividends:
Excluding Interest on Deposits........................ 2.59x 3.14x 3.23x 2.65x 3.49x
Including Interest on Deposits........................ 1.57 1.64 1.57 1.44 1.60
</TABLE>
For the purpose of calculating the ratio of earnings to fixed charges and
preferred stock dividends, we have divided income before income taxes plus fixed
charges by fixed charges in 1997 and by the total of fixed charges and pre-tax
earnings required to cover preferred stock dividends in 1998, 1996, 1995 and
1994. Fixed charges, excluding interest on deposits, consist of:
- interest on federal funds purchased,
- interest on security repurchase agreements,
- interest on other borrowed funds,
- interest on corporate long-term debt, and
- that portion of rental expense which is deemed to be representative of
the interest factor.
Fixed charges, including interest on deposits, consist of the above items
plus interest on deposits.
DESCRIPTION OF THE SECURITIES
The securities we are offering will constitute either Senior Debt
Securities or Subordinated Debt Securities. The Senior Debt Securities and the
Subordinated Debt Securities will be issued under separate indentures between us
and The Bank of New York, as trustee. Pursuant to the Trust Indenture Act of
1939, as amended, the trustee will have a "conflicting interest" if the
securities issued under either indenture are in default. If this occurs, the
trustee may be required to resign its trusteeship under the defaulted indenture
and we would appoint a successor trustee. A copy of the form of each indenture
has been filed as an exhibit to the registration statement of which this
prospectus forms a part.
The following summaries of certain provisions of the indentures are not
complete. You should read all of the provisions of the indentures, including the
definitions of certain terms. These summaries set forth certain general terms
and provisions of the securities to which any prospectus supplement may relate.
The particular terms of the securities offered by any prospectus supplement and
the applicability of the general provisions will be described in the appropriate
prospectus supplement. Unless otherwise indicated, parenthetical section
references refer to each of the indentures.
Since we are a holding company, our right, and accordingly, the right of
our creditors and stockholders, including the holders of the securities offered
by this prospectus and any prospectus supplement, to participate in any
distribution of assets of any of our subsidiaries upon its liquidation,
reorganization or similar proceeding is subject to the prior claims of creditors
of that subsidiary, except to the extent that our claims as a creditor of the
subsidiary may be recognized.
Neither indenture contains any terms which would protect the holders of the
securities in the event of a recapitalization, a change of control, a highly
leveraged transaction or a restructuring involving us that results in a
downgrade of our public debt rating.
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TERMS OF THE SECURITIES
The securities will be not be secured by any of our assets. Neither the
indentures nor the securities will limit or otherwise restrict the amounts of
other indebtedness which we may incur, or the amount of other securities that we
may issue. The indentures do not limit the principal amount of any particular
series of securities. All of the securities issued under each of the indentures
will rank equally and ratably with any additional securities issued under the
same indenture. The Senior Debt Securities will rank equally with all of our
other unsecured and non-subordinated indebtedness. The Subordinated Debt
Securities will be subordinated as described below under "Subordinated Debt
Securities."
Each prospectus supplement will specify the particular terms of the
securities offered. These terms may include:
- the title of the securities,
- any limit on the aggregate principal amount of the securities,
- the priority of payment of the securities,
- the issue price or prices (which may be expressed as a percentage of the
aggregate principal amount) of the securities,
- the date or dates, or the method of determining the dates, on which the
securities will mature,
- the interest rate or rates of the securities, or the method of
determining those rates,
- the interest payment dates, the dates on which payment of any interest
will begin and the regular record dates,
- whether the securities will be issuable in temporary or permanent global
form and, if so, the identity of the depositary for such global security,
or the manner in which any interest payable on a temporary or permanent
global security will be paid,
- any sinking fund or similar provision applicable to the securities,
- any mandatory or optional redemption provisions applicable to the
securities,
- the denomination or denominations in which securities are authorized to
be issued,
- whether any of the securities will be issued in bearer form and, if so,
any limitations on issuance of such bearer securities (including exchange
for registered securities of the same series),
- information with respect to book-entry procedures,
- whether any of the securities will be issued as Original Issue Discount
Securities,
- each office or agency where securities may be presented for registration
of transfer or exchange,
- the method of determining the amount of any payments on the securities
which are linked to an index,
- if other than U.S. dollars, the currency or currencies in which payments
on the securities will be payable, and whether the holder may elect
payment to be made in a different currency,
- if other than the trustee, the identity of the registrar and/or paying
agent,
- any defeasance of certain obligations by the company pertaining to the
series of securities,
- whether and on what terms we will pay additional amounts to holders that
are not U.S. persons in respect of any tax, assessment or governmental
charge withheld or deducted, and if so, whether we will have the option
to redeem such securities rather than pay such additional amounts (and
the terms of any such option), and
- any other specific terms of the securities.
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Some of the securities may be issued as original issue discount securities
(the "Original Issue Discount Securities"). Original Issue Discount Securities
bear no interest or bear interest at below-market rates and will be sold at a
discount below their stated principal amount. The prospectus supplement will
also contain any special tax, accounting or other information relating to
Original Issue Discount Securities or relating to certain other kinds of
securities that may be offered, including securities linked to an index.
ACCELERATION OF MATURITY
If an event of default in connection with any outstanding series of
securities occurs and is continuing, the trustee or the holders of at least 25%
in principal amount of the outstanding securities of that series may declare the
principal amount due and payable immediately. If the securities of that series
are Original Issue Discount Securities, the holders of at least 25% in principal
amount of those securities may declare the portion of the principal amount
specified in the terms of that series of securities to be due and payable
immediately. In either case, a written notice must be given to us, and to the
trustee, if notice is given by the holders instead of the trustee. Subject to
certain conditions, the declaration of acceleration may be revoked, and past
defaults (except uncured payment defaults and certain other specified defaults)
may be waived, by the holders of a majority of the principal amount of
securities of that series.
You should refer to the prospectus supplement relating to each series of
securities which are Original Issue Discount Securities for the particular
provisions relating to acceleration of the maturity upon the occurrence and
continuation of an event of default.
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable prospectus supplement, each
series of the offered securities will be issued in registered form only, without
coupons. The indentures will also allow us to issue the securities in bearer
form only, or in both registered and bearer form. Any securities issued in
bearer form will have interest coupons attached, unless they are issued as zero
coupon securities. Securities in bearer form will not be offered, sold, resold
or delivered in connection with their original issuance in the United States or
to any United States person other than to offices of certain United States
financial institutions located outside the United States.
Unless otherwise indicated in the applicable prospectus supplement, the
securities we are offering will be issued in denominations of $1,000 or an
integral multiple of $1,000. No service charge will be made for any transfer or
exchange of the securities, but we may require payment of an amount sufficient
to cover any tax or other governmental charge payable in connection with a
transfer or exchange.
PAYMENT AND PAYING AGENT
We will pay principal, interest and any premium on fully registered
securities in the designated currency or currency unit at the office of a
designated paying agent. At our option, payment of interest on fully registered
securities may also be made by check mailed to the persons in whose names the
securities are registered on the days specified in the indentures or any
prospectus supplement. (Section 307)
We will pay principal, interest and any premium on bearer securities in the
designated currency or currency unit at the office of a designated paying agent
or agents outside of the United States. Payments will be made at the offices of
the paying agent in the United States only if the designated currency is US
dollars and payment outside of the United States is illegal or effectively
precluded. If any amount payable on any security or coupon remains unclaimed at
the end of two years after such amount became due and payable, the Paying Agent
will release any unclaimed amounts, and the holder of the security or coupon
will look only to us for payment.
The designated paying agent in the United States for the securities we are
offering is The Bank of New York, located at 101 Barclay Street, New York, New
York 10286.
GLOBAL SECURITIES
The securities of a series may be issued in whole or in part in the form of
one or more global certificates ("Global Securities") that will be deposited
with a depositary that we will identify in a prospectus supplement.
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Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form. All Global Securities in bearer form will be
deposited with a depositary outside the United States. Unless and until it is
exchanged in whole or in part for individual certificates evidencing securities
in definitive form represented thereby, a Global Security may not be transferred
except as a whole by the depositary to a nominee of that depositary or by a
nominee of that depositary to a depositary or another nominee of that
depositary.
The specific terms of the depositary arrangements for each series of
securities will be described in the applicable prospectus supplement.
RESTRICTIVE COVENANTS
The Senior Indenture contains a covenant that, except as otherwise provided
below, we 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 otherwise dispose of, any shares of capital stock of any subsidiary or any
securities convertible into capital stock of any subsidiary which is:
- a Principal Constituent Bank, or
- a subsidiary which owns shares of capital stock, or any securities
convertible into capital stock, of a Principal Constituent Bank.
However, this covenant does not prohibit:
(a) any dispositions made by us or any subsidiary:
(1) acting in a fiduciary capacity for any person other than us
or any subsidiary, or
(2) to us or any of our wholly owned subsidiaries, or
(b) 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.
This covenant does not prohibit sales, assignments, pledges, transfers,
issuances or other dispositions of shares of capital stock of a Principal
Constituent Bank referred to in (a) or (b) above where:
- 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
- the sales, assignments, pledges, transfers, issuances or other
dispositions are made in compliance with an order of a court or a
regulatory authority of competent jurisdiction or as a condition imposed
by any such court or authority to our acquisition, directly or
indirectly, of any other corporation or entity, or
- in the case of (1) a disposition or issuance of shares of capital stock,
or any securities convertible into capital stock, of a Principal
Constituent Bank, or (2) sales of capital stock or any securities
convertible into capital stock of any wholly owned subsidiary:
(a) the sales, assignments, pledges, transfers, issuances or other
dispositions are for fair market value (as determined by our Board of
Directors and the Board of Directors of the subsidiary disposing of such
shares or securities, and evidenced by a resolution of our Board of
Directors), and
(b) after giving effect to such disposition and to any potential
dilution (if the shares or securities are convertible into capital stock),
we and our directly or indirectly wholly owned subsidiaries will own
directly not less than 80% of the Voting Stock of such Principal
Constituent Bank or subsidiary, or
- a Principal Constituent Bank sells additional shares of capital stock to
its stockholders at any price, so long as immediately after such sale we
own, directly or indirectly, at least as great a percentage of the Voting
Stock of such Principal Constituent Bank as we owned before the sale of
the additional shares.
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A Constituent Bank is defined as a subsidiary which meets the definition of
a Bank in the indentures. A Principal Constituent Bank is a Constituent Bank
with consolidated assets constituting 15% or more of our consolidated assets. At
the date of this prospectus, National City Bank, National City Bank of
Pennsylvania National City Bank of Indiana and National City Bank of
Michigan/Illinois are the only Principal Constituent Banks. (Senior Indenture,
Section 1006)
The Senior Indenture prohibits us from acquiring capital stock of any
corporation or acquiring substantially all the assets and liabilities of any
corporation, unless, immediately after such acquisition, we would be in full
compliance with the Senior Indenture. (Senior Indenture, Section 1008) In
addition, the Senior Indenture prohibits us from creating or permitting any
liens upon any shares of capital stock of any Constituent Bank to secure any
indebtedness without securing the Senior Debt Securities equally and ratably
with all indebtedness secured by those liens. (Senior Indenture, Section 1007)
MODIFICATION AND WAIVER
Each indenture provides that modifications and amendments may be made by us
and the trustee with the consent of the holders of a majority in principal
amount of the outstanding securities of each series affected by the amendment or
modification. However, no modification or amendment may, without the consent of
each holder affected:
- change the stated maturity date of the principal of, or any installment
of interest on, any security,
- reduce the principal amount, any rate of interest, or any additional
amounts in respect of any security, or reduce the amount of any premium
payable upon the redemption of any security,
- change the place of payment, currency or currencies in which any security
or any premium or interest thereon is payable,
- impair the right to institute suit for the enforcement of any payment on
or after the stated maturity date of any security or, in the case of
redemption, on or after the redemption date,
- reduce the percentage of securities required to consent to any
modification, amendment or waiver under the indenture,
- modify, except under limited circumstances, any provision of the
applicable indenture relating to modification and amendment of the
indenture, waiver of compliance with conditions and defaults thereunder
or the right of a majority of holders to take action under the applicable
indenture,
- in the case of the Subordinated Indenture, alter the provisions regarding
subordination of the Subordinated Debt Securities in any way that would
be adverse to the holders of those securities,
- reduce the principal amount of Original Issue Discount Securities which
could be declared due and payable upon an acceleration of their maturity,
or
- change our obligation to pay any additional amounts. (Section 902)
The holders of a majority in principal amount of the outstanding securities
of any series may waive compliance by us and the trustee with certain provisions
of the indentures. (Senior Indenture, Section 1011; Subordinated Indenture,
Section 1008) The holders of a majority in principal amount of the outstanding
securities of any series may waive any past default under the applicable
indenture with respect to that series, except a default in the payment of the
principal, or any premium, interest, or additional amounts payable on security
of that series or in respect of a covenant or provision which under the terms of
the applicable indenture cannot be modified or amended, without the consent of
each affected holder. (Section 513)
With the trustee, we may modify and amend either indenture without the
consent of any holder for any of the following purposes:
- to name a successor entity to National City Corporation,
- to add to our covenants for the benefit of the holders of all or any
series of securities,
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- to add to the events of default,
- 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 set forth in the applicable
indenture,
- to establish the form or terms of securities of any series and any
related coupons,
- to provide for the acceptance of appointment by a successor trustee,
- to cure any ambiguity, defect or inconsistency in the applicable
indenture, provided that such action is not inconsistent with the
provisions of that indenture and does not materially adversely affect the
interests of the applicable holders, or
- to modify, eliminate or add to the provisions of either indenture to
conform our or the trustee's obligations under the applicable indenture
to the Trust Indenture Act of 1939, as amended. (Section 901)
CALCULATION OF OUTSTANDING DEBT SECURITIES
To calculate whether the holders of a sufficient principal amount of the
outstanding securities have given any request, demand, authorization, direction,
notice, consent or waiver under either indenture:
- In the case of Original Issue Discount Securities, the principal amount
that may be included in the calculation is the amount of principal that
would be declared to be due and payable upon a declaration of
acceleration according to the terms of that Original Issue Discount
Security as of the date of the calculation.
- Any securities owned by us, or owned by any other obligor of the
securities or any affiliate of ours or any other obligor, should be
disregarded and deemed not to be outstanding for purposes of the
calculation. (Section 101)
ADDITIONAL PROVISIONS
Other than the duty to act with the required standard of care during an
event of default, the trustee is not obligated to exercise any of its rights or
powers under the applicable indenture at the request or direction of any of the
holders of the securities, unless the holders have offered the trustee
reasonable indemnification. (Section 602) Each indenture provides that the
holders of a majority in principal amount of outstanding securities of any
series may, in certain circumstances, direct the time, method and place of
conducting any proceeding for any remedy available to the trustee, or exercising
any trust or other power conferred on the trustee. (Section 512)
No holder of a security of any series will have the right to institute any
proceeding for any remedy under the applicable indenture, unless:
- the holder has provided the trustee with written notice of a continuing
event of default regarding the holder's series of securities,
- the holders of at least 25% in principal amount of the outstanding
securities of a series have made a written request, and offered indemnity
satisfactory to the trustee, to the trustee to institute a proceeding for
remedy,
- the trustee has failed to institute the proceeding within 60 days after
its receipt of such notice, request and offer of indemnity, and
- the trustee has not received a direction during such 60 day period
inconsistent with such request from the holders of a majority in
principal amount of the outstanding securities of that series. (Section
507)
However, the holder of any security will have an absolute and unconditional
right to receive payment of the principal, any premium, any interest or any
additional amounts in respect of such security on or after the due dates
expressed in such security and to institute suit for the enforcement of any such
payment. (Section 508)
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We are required to file annually with the trustee a certificate of no
default, or specifying any default that exists. (Section 1005)
REGARDING THE TRUSTEE
We and our subsidiaries maintain deposit accounts and conduct various
banking transactions with the trustee. The trustee and its subsidiaries maintain
deposit accounts and conduct various banking transactions with us and our
subsidiaries.
SENIOR DEBT SECURITIES
The Senior Debt Securities will be unsecured and will rank equally among
themselves and with all of our other unsecured and non-subordinated debt.
EVENTS OF DEFAULT
The following will be events of default under the Senior Indenture with
respect to the Senior Debt Securities of a series:
- failure to pay any interest or any additional amounts on any Senior Debt
Security of that series when due, and continuance of such default for 30
days,
- failure to pay principal of, or any premium on, any Senior Debt Security
of that series when due,
- failure to deposit any sinking fund payment for a Senior Debt Security of
that series when due,
- failure to perform any of our other covenants or warranties in the Senior
Indenture or Senior Debt Securities (other than a covenant or warranty
included in that indenture solely for the benefit of a different series
of Senior Debt Securities), which has continued for 90 days after written
notice as provided in the Senior Indenture,
- acceleration of indebtedness in a principal amount greater than
$25,000,000 for money borrowed by us or any Principal Constituent Bank
under the terms of the instrument under which such debt is issued or
secured, and the acceleration is not annulled, or the indebtedness is not
discharged, within 30 days after written notice is given according to the
Senior Indenture,
- certain events in bankruptcy, insolvency or reorganization of us or any
Principal Constituent Bank, and
- any other event of default regarding that series of Senior Debt
Securities. (Section 501)
SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be unsecured and will be subordinate
and junior in right of payment, to the extent and in the manner set forth below,
to the prior payment in full of all Senior Indebtedness. (Subordinated
Indenture, Article Fifteen) The term "Senior Indebtedness" is defined below.
SUBORDINATION
If any of the following circumstances has occurred, payment in full of all
principal, premium and interest must be made or provided for with respect to all
outstanding Senior Indebtedness before we can make any payment or distribution
of principal, any premium, any additional amounts or interest on the
Subordinated Debt Securities:
- any insolvency, bankruptcy, receivership, liquidation,
reorganization or other similar proceeding relating to us or to our
property has been commenced,
- any voluntary or involuntary liquidation, dissolution or other
winding up relating to us has been commenced, whether or not such
event involves our insolvency or bankruptcy,
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- any Subordinated Debt Security of any series is declared or
otherwise becomes due and payable before its maturity date because
of any event of default under the Subordinated Indenture, provided
that such declaration has not been rescinded or annulled as provided
in the Subordinated Indenture, or
- any default with respect to Senior Indebtedness which permits its
holders to accelerate the maturity of the Senior Indebtedness has
occurred and is continuing, and either (a) notice of such default
has been given to us and to the trustee and judicial proceedings are
commenced in respect of such default within 180 days after notice in
the case of a default in the payment of principal or interest, or
within 90 days after notice in the case of any other default, or (b)
any judicial proceeding is pending with respect to any such default.
(Subordinated Indenture, Article Fifteen)
The term "Senior Indebtedness" means:
- the principal and any premium or interest for money borrowed or
purchased by us,
- the principal and any premium or interest for money borrowed or
purchased by another person and guaranteed by us,
- any deferred obligation for the payment of the purchase price of
property or assets evidenced by a note or similar agreement,
- an obligation arising from direct credit substitutes, and
- 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 the Subordinated Indenture became
effective, or created, assumed or incurred after that date.
The definition of Senior Indebtedness excludes any indebtedness that:
- expressly states that it is junior to, or ranks equally in right of
payment with, the Subordinated Debt Securities, or
- is identified as junior to, or equal in right of payment with, the
Subordinated Debt Securities in any resolution of our Board of
Directors or in any supplemental indenture. (Subordinated Indenture,
Section 101)
As of December 31, 1998, we had approximately $5.2 million in principal
amount of debt which would constitute Senior Indebtedness, and $1.625 billion in
principal amount of debt which would rank equally with the Subordinated Debt
Securities.
EVENTS OF DEFAULT
Events of default under the Subordinated Indenture are limited to certain
events of bankruptcy, insolvency or reorganization of us or any Principal
Constituent Bank.
There is no right of acceleration of the payment of principal of a series
of Subordinated Debt Securities upon a default in the payment of principal or
interest, nor upon a default in the performance of any covenant or agreement in
the Subordinated Debt Securities of a particular series or in the Subordinated
Indenture. In the event of a default in the payment of interest or principal,
the holders of Senior Indebtedness will be entitled to be paid in full before
any payment can be made to holders of Subordinated Debt Securities. However, a
holder of a Subordinated Debt Security (or the trustee under the Subordinated
Indenture on behalf of all of the holders of the affected series) may, subject
to certain limitations and conditions, seek to enforce payment of interest or
principal of the Subordinated Debt Securities.
UNITED STATES TAXATION
The following summary of the principal United States federal income tax
consequences of the ownership of the securities is based on the Internal Revenue
Code of 1986, as amended (the "Code"), existing and proposed United States
Treasury Regulations (the "Treasury Regulations"), and existing administrative
and judicial
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precedent, all as in effect as of the date hereof, all of which are subject to
change at any time, possibly with retroactive effect. The legal conclusions in
this discussion under the caption "United States Taxation" are not binding upon
the Internal Revenue Service (the "IRS") or any other administrative or judicial
agency, authority or tribunal.
This summary deals only with securities held as capital assets by their
initial purchasers and does not deal with purchasers that do not acquire their
securities as part of the initial distribution or with special classes of
holders, such as dealers in securities or currencies, financial institutions,
tax-exempt organizations, insurance companies, controlled foreign corporations
or persons holding securities as part of a straddle, hedge, conversion
transaction or other integrated investment. It also does not address securities
held by persons who are not Holders (as defined below) or held by persons whose
functional currency is not the U.S. dollar.
Prospective purchasers of securities should consult their own tax advisors
concerning the application of the United States federal income tax laws to their
particular situations, as well as tax consequences under state or local, or
foreign, tax laws.
UNITED STATES HOLDERS ONLY
As used herein, the term "Holder" means a holder of a security who or that
is:
- a citizen or resident of the United States,
- a corporation or partnership (including an entity treated as a
corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia,
- an estate, the income of which is subject to United States federal income
taxation regardless of its source, or
- a trust, if a U.S. court is able to exercise primary supervision over the
administration of the trust and one or more U.S. persons have the
authority to control all substantial decisions of the trust.
PAYMENTS OF INTEREST
Interest (including qualified stated interest, as defined under "Original
Issue Discount Securities" below) paid on a security will generally be taxable
to a Holder as ordinary interest income at the time it accrues or is received
(whether actually or constructively) in accordance with the Holder's method of
accounting for federal tax purposes. Special rules governing the treatment of
interest on Original Issue Discount Securities are described below.
ORIGINAL ISSUE DISCOUNT SECURITIES
General. A security with an issue price that is less than its stated
redemption price at maturity will generally be considered to have been issued at
an original issue discount ("OID") for federal income tax purposes (an "Original
Issue Discount Security"). The "issue price" of an issue of securities for cash
will be the first price at which a substantial amount of such securities is sold
to the public (excluding sales to bond houses, brokers, underwriters, and the
like). The "stated redemption price at maturity" of a security will equal the
sum of all payments to be made thereunder, other than payments of qualified
stated interest (as defined below). As a result, a security generally will have
OID if it provides for payments of interest other than qualified stated
interest. "Qualified stated interest" is stated interest that is unconditionally
payable in cash or in property (other than debt instruments of the issuer) at
least annually at a single fixed rate that appropriately takes into account the
length of the interval between payments.
If the difference between a security's stated redemption price at maturity
and its issue price is less than 1/4 of 1 percent of the stated redemption price
at maturity multiplied by the number of complete years to maturity, then the
security will not be considered to have OID, but will be considered to have de
minimis OID. If the excess of a security's stated redemption price at maturity
over its issue price is de minimis then, unless a Holder elects to treat de
minimis OID in the manner described above in respect of OID, a Holder will be
required to recognize
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capital gain with respect to such de minimis OID as stated principal payments on
the security are made. The amount of such gain with respect to each such
principal payment will equal the product of the total amount of the security's
de minimis OID and a fraction, the numerator of which is the amount of the
principal payment made and the denominator of which is the total stated
principal amount of the Security.
Holders of Original Issue Discount Securities having a maturity of more
than one year from their date of issue are required to include OID in income
calculated on a constant yield method without regard to when the cash payments
attributable to such income are received. The amount of OID includible in income
by a Holder of an Original Issue Discount Security is the sum of the daily
portions of OID for each day during the taxable year or portion of the taxable
year in which it holds such Original Issue Discount Security. The daily portion
is determined by allocating to each day in any accrual period a pro rata portion
of the OID allocable to that accrual period. An "accrual period" is each period
between payment dates (including, if shorter, the period from the issue date to
the first interest payment date and the period from the last interest payment
date to the maturity date), although an accrual period may be of any length and
the accrual periods may vary in length over the term of an Original Issue
Discount Security, provided that each accrual period is no longer than one year
and each scheduled payment of principal or interest occurs either on the first
or final day of an accrual period. The amount of OID allocable to an accrual
period is the excess of (a) the product of the Original Issue Discount
Security's adjusted issue price at the beginning of such accrual period and its
yield to maturity (determined on the basis of a constant interest rate and
compounded at the end of each accrual period and properly adjusted for the
length of the accrual period) over (b) the amount of qualified stated interest
allocable to the accrual period. The "adjusted issue price" of the Original
Issue Discount Security at the beginning of any accrual period is the issue
price of such Original Issue Discount Security, plus the amount of accrued OID
for all prior accrual periods, minus any amount of prior payments on the
Original Issue Discount Security that were not qualified stated interest
payments.
Under the foregoing rules, Holders will generally have to include in income
increasingly greater amounts of OID in successive accrual periods.
Variable Rate Original Issue Discount Securities. It is possible that
securities that (a) bear interest initially at a fixed rate followed by a
variable rate that is not approximately the same as the initial fixed rate on
the date of issue or (b) bear interest at a variable rate that is not a single
qualified floating rate or objective rate would be subject to the OID rules
regardless of the price at which such securities are issued. Accordingly,
Holders (including cash basis Holders) may be required to report income in
respect of such securities before the receipt of cash payments attributable
thereto under the rules described above. The applicable prospectus supplement
will contain a discussion of any additional relevant United States federal
income tax consequences with respect to an issuance of variable rate Original
Issue Discount Securities.
Acquisition Premium. A Holder who purchases an Original Issue Discount
Security for an amount that is greater than its adjusted issue price as of the
purchase date and less than or equal to the sum of all amounts payable on the
Original Issue Discount Security after the purchase date other than payments of
qualified stated interest, will be considered to have purchased the Original
Issue Discount Security at an "acquisition premium." Under the acquisition
premium rules, the amount of OID that such Holder must include in its gross
income with respect to such Original Issue Discount Security for any taxable
year (or portion thereof) in which the Holder holds the Original Issue Discount
Security will be reduced (but not below zero) by the portion of the acquisition
premium properly allocable to such year.
Optional Redemption. For purposes of determining OID, if National City
Corporation has an option to redeem a security prior to its stated maturity,
such option will be presumed to be exercised if and on such dates that, by
utilizing any date on which such security may be redeemed as the maturity date
and the amount payable on such date in accordance with the terms of such
security (the "redemption price") as the stated redemption price at maturity,
the yield on the security would be minimized. If such option is not in fact
exercised when presumed to be exercised, the security would be treated as if it
were redeemed, and a new security were issued, on the presumed exercise date for
an amount equal to the redemption price.
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Acceleration of Maturity. The applicable prospectus supplement will contain
a discussion of any additional relevant United States federal income tax
consequences relating to an acceleration of the maturity of an Original Issue
Discount Security.
Short-Term Debt Securities. In general, an individual or other cash method
Holder of a security that matures one year or less from its date of issuance (a
"Short-Term Discount Security") is not required to accrue OID for United States
federal income tax purposes unless it elects to do so. Accrual method Holders
and certain other holders, including banks, regulated investment companies and
dealers in securities, are required to accrue OID on Short-Term Discount
Securities on a straight-line basis unless an election is made to accrue the OID
under the constant yield method (based on daily compounding). In the case of a
Holder not required and not electing to include OID in income currently, any
gain realized on the sale, exchange or retirement of the Short-Term Discount
Security will be ordinary income to the extent of the OID accrued on a
straight-line basis through the date of sale, exchange or retirement. Holders
who are not required to and do not elect to accrue OID on Short-Term Discount
Securities will be required to defer deductions for interest on borrowings
allocable to Short-Term Discount Securities in an amount not exceeding the
deferred income until the deferred income is realized.
Reporting. National City Corporation is required to report to the IRS the
amount of OID accrued on Original Issue Discount Securities held of record by
Holders other than certain exempt holders, such as corporations and tax-exempt
organizations. The amount required to be reported by National City Corporation
may not be equal to the amount of OID required to be reported as taxable income
by a Holder of such Original Issue Discount Securities.
DEBT SECURITIES PURCHASED AT A MARKET DISCOUNT OR PREMIUM
Market Discount. If a Holder (a) purchases a security for an amount that is
less than its issue price, and (b) the security's stated redemption price at
maturity exceeds the Holder's purchase price by more than a de minimis amount,
the amount of the difference will be treated as "market discount." In the case
of an Original Issue Discount Security, market discount exists if (x) the
Holder's purchase price is less than such security's issue price, and (y) the
security's revised issue price exceeds the Holder's purchase price by more than
a de minimis amount. The de minimis test used for this purpose is the same de
minimis standard described above under "Original Issue Discount Securities."
Under the market discount rules, a Holder will be required to treat any
partial principal payment (or, in the case of an Original Issue Discount
Security, any payment that does not constitute qualified stated interest) on, or
any gain realized on the sale, exchange, retirement or other disposition of, a
security as ordinary income to the extent of the lesser of (a) the amount of
such payment or realized gain or (b) the market discount that has not previously
been included in income and is treated as having accrued on such security at the
time of such payment or disposition. Market discount will be considered to
accrue ratably during the period from the date of acquisition to the maturity
date of the security, unless the Holder elects to accrue market discount over
such period on a constant yield method. The amount of accrued market discount
will be reduced by the amount of any partial principal payment (or, in the case
of an Original Issue Discount Security, any payment that does not constitute
qualified stated interest) included in gross income under the market discount
rules.
A Holder may be required to defer the deduction of all or a portion of the
interest paid or accrued on any indebtedness incurred or maintained to purchase
or carry a security with market discount until the maturity of the security or
its earlier disposition in a taxable transaction. The amount so deferred is that
portion of any interest expense on such indebtedness, net of the interest
(including OID) includible in gross income, but only to the extent of the
allocable portion of the accrued market discount.
A Holder may elect to include market discount in income currently as it
accrues (either ratably or on a constant yield method using semiannual
compounding), in which case the rules described above regarding the treatment as
ordinary income of gain upon the disposition of the security and upon the
receipt of certain cash payments and regarding the deferral of interest
deductions will not apply. Generally, such currently included market discount is
treated as ordinary income for United States federal income tax purposes.
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Amortizable Bond Premium. A Holder that purchases a security for an amount
in excess of the amount payable at maturity will be considered to have purchased
such security at a premium equal to such excess and may elect to amortize such
premium using a constant yield method over the term of the security. Any such
election will apply to all bonds (other than bonds the interest on which is
excludible from gross income) acquired by the Holder on or after the first day
of the first taxable year to which such election applies, and is irrevocable
without the consent of the IRS.
PURCHASE, SALE, EXCHANGE AND RETIREMENT OF THE DEBT SECURITIES
A Holder's adjusted tax basis in a security will be its U.S. dollar cost,
increased by the amount of any OID or accrued market discount included in the
Holder's income with respect to the security and reduced by the amount of any
amortizable bond premium, by principal payments received by the Holder and, in
the case of Original Issue Discount Securities, by the amount of any interest
payments on the security that are not qualified stated interest payments. A
Holder will recognize gain or loss on the sale, exchange or retirement of a
Security equal to the difference between the amount realized on the sale,
exchange or retirement and the Holder's adjusted tax basis in the security.
Except to the extent described under "Short-Term Debt Securities" and "Debt
Securities Purchased at a Market Discount or Premium" above, gain or loss
recognized on the sale, exchange or retirement of a security will be capital
gain or loss and will be long-term capital gain or loss if the security was held
for more than one year.
BACKUP WITHHOLDING AND INFORMATION REPORTING
A Holder may be subject to backup withholding at a rate of 31% on, and
information reporting with respect to, payments of principal, premium or
interest (including OID, if any) on, and the proceeds of disposition of, a
security. Backup withholding will apply only if the Holder (a) fails to furnish
its Taxpayer Identification Number ("TIN") which, for an individual, would be
his or her Social Security Number, (b) furnishes an incorrect TIN, (c) is
notified by the IRS that it has failed to properly report payments of interest
and dividends or (d) under certain circumstances, fails to certify, under
penalty of perjury, that it has furnished a correct TIN and that it has not been
notified by the IRS that it is subject to backup withholding for failure to
report interest and dividend payments. Backup withholding will not apply with
respect to payments made to certain exempt recipients, such as corporations and
tax-exempt organizations. Holders should consult their tax advisers regarding
their qualification for exemption from backup withholding and the procedure for
obtaining such an exemption.
The amount of any backup withholding from a payment to a Holder will be
allowed as a credit against such Holder's United States federal income tax
liability and may entitle such Holder to a refund of federal income tax,
provided that the required information is furnished to the IRS.
Recently, the Treasury Department issued new regulations (the "New
Regulations") which make certain modifications to the backup withholding and
information reporting rules described above. The New Regulations attempt to
unify certification requirements and modify reliance standards. The New
Regulations will generally be effective for payments made after December 31,
1999, subject to certain transition rules. Prospective investors are urged to
consult their own tax advisors regarding the New Regulations.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
To avoid potential adverse United States federal tax consequences to
holders of the securities, Bearer Securities, including securities in permanent
global form that are either Bearer Securities or exchangeable for Bearer
Securities, may not be offered or sold during the restricted period (as defined
in Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) within the United States
or to United States persons (each as defined below) other than to an office of a
financial institution (as defined in Treasury Regulations Section
1.165-12(c)(1)(v)) which is located outside the United States. That office must
be purchasing for its own account or for resale or for the account of certain
customers, and must provide a certificate stating that it agrees to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code and the Treasury Regulations thereunder, or to certain other persons
described in Treasury Regulations Section 1.163-5(c)(2)( i)(D)(1)(iii)(B).
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Bearer Securities may not be delivered in connection with their sale during
the restricted period within the United States. Any distributor (as defined in
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4)) participating in the
offering or sale of Bearer Securities must certify that:
- it will not offer or sell during the restricted period any Bearer
Securities within the United States or to United States persons (other than
the persons described above),
- it will not deliver any Bearer Securities during the restricted
period within the United States, and
- it has in effect procedures reasonably designed to ensure that its
employees and agents who are directly engaged in selling the Bearer
Securities are aware of the restrictions on offers and sales described
above.
No Bearer Security, other than a temporary global security may be
delivered, nor may interest be paid on any Bearer Security until we receive:
- a Depositary Tax Certification in the case of temporary global
securities, or
- an Owner Tax Certification in all other cases.
Bearer Securities will bear a legend similar to the following: "Any United
States person who holds this obligation will be subject to limitations under the
United States income tax laws, including the limitations provided in Sections
165(j) and 1287(a) of the Internal Revenue Code."
Purchasers of Bearer Securities may be affected by certain United States
tax laws. Such laws will be discussed in the applicable prospectus supplement.
As used in this section "United States person" means any citizen or
resident of the United States, any corporation or partnership or (including an
entity treated as a corporation or partnership for United States federal income
tax purposes) created or organized in or under the laws of the United States,
any State thereof or the District of Columbia, any estate the income of which is
subject to United States federal income taxation regardless of its source, and a
trust if both (i) a U.S. court is able to exercise primary supervision over the
administration of the trust and (ii) one or more United States persons have the
authority to control all substantial decisions of the trust, and "United States"
means the United States of America, including all of its states, the District of
Columbia and its possessions.
PLAN OF DISTRIBUTION
We may sell the securities:
- through underwriters,
- through agents, or
- directly to a limited number of institutional purchasers or to a single
purchaser.
The applicable prospectus supplement will set forth the terms of the
offering of the securities, including the following:
- the name or names of any underwriters,
- the purchase price and the proceeds we will receive from such sale,
- any underwriting discounts and other items constituting underwriters'
compensation,
- any discounts or concessions allowed or reallowed or paid to dealers, and
- any securities exchanges on which the securities of such series may be
listed.
If underwriters are used in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed
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public offering price or at varying prices determined at the time of sale. The
securities may be either offered to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate. The
obligations of the underwriters to purchase securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the securities of a series if any are purchased. Any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
Securities may be sold directly by us or through agents designated by us
from time to time. Any agent involved in the offer or sale of the securities in
respect of which this prospectus is delivered will be named and any commissions
payable by us to such agent will be described in the prospectus supplement.
Unless otherwise indicated in the prospectus supplement, any agent will be
acting on a best efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types
of institutions to purchase securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. The
conditions to these contracts and the commissions payable for solicitation of
such contracts will be set forth in the applicable prospectus supplement.
Agents and underwriters may be entitled to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act of
1933, or to contribution with respect to payments which the agents or
underwriters may be required to make relating to such liabilities. Agents and
underwriters may be customers of, engage in transactions with, or perform
services for, us in the ordinary course of business.
Each series of securities will be a new issue of securities with no
established trading market. Any underwriter may make a market in such
securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for any securities.
Certain of the underwriters and their associates may be customers of,
engage in transactions with, and perform services for us, in the ordinary course
of business.
LEGAL OPINIONS
Certain legal matters, including the validity of the securities, will be
passed upon by the National City Corporation Law Department, and for any
underwriters or agents by Brown & Wood LLP, One World Trade Center, New York,
New York 10048.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 1998, as set forth in their report, which is incorporated in
this prospectus by reference which, as to the years 1997 and 1996, is based in
part on the report of KPMG LLP, independent auditors. Our consolidated financial
statements are incorporated by reference in reliance on their report, given on
their authority as experts in accounting and auditing.
The consolidated financial statements of First of America Bank Corporation
("FOA") in FOA's annual report on Form 10-K as of December 31, 1997, and for
each of the years in the two-year period ended December 31, 1997, have been
incorporated herein by reference and in this prospectus in reliance upon the
report of KPMG LLP, independent certified public accountants, incorporated by
reference, and upon the authority of said firm as experts in accounting and
auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are expenses estimated pursuant to Item 511 of Regulation S-K
(except for the SEC Registration Fee), subject to future contingencies, of the
expenses to be incurred by the registrant in connection with the issuance and
distribution of securities being registered:
<TABLE>
<S> <C>
SEC Registration Fee........................................ $278,000
Legal Fees and Expenses..................................... 25,000
Accounting Fees and Expenses................................ 1,000
Rating Agency Fees.......................................... 0
Trustees' Fees.............................................. 5,000
Miscellaneous............................................... 10,000
--------
Total............................................. $319,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "GCL") empowers a
Delaware corporation to indemnify any person who was or is or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his conduct was
unlawful. A Delaware corporation may indemnify such person who was or is, or is
threatened to be made, a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and to the extent the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the Court of
Chancery or other such court shall deem proper. To the extent such person has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to above, or in defense of any claim, issue or matter
therein, the corporation must indemnify him against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. The indemnification and advancement of expenses provided for under,
or granted pursuant to, Section 145 of the GCL are not exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, in official or non-official capacities. Section 145 of
the GCL also provides that a corporation may purchase and maintain insurance on
behalf of a person against any liability asserted against such person whether or
not the corporation would have the power to indemnify such person against such
liability under Section 145 of the GCL.
Article VI of the Registrant's First Restatement of By-Laws provides for
the mandatory indemnification of directors, officers or employees of the
Registrant or any of its subsidiaries and of those persons serving at the
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise in accordance
with and to the full extent permitted by the GCL. The Registrant has purchased
liability insurance covering certain liabilities which may be incurred by the
directors, officers, employees and agents of the Registrant and its subsidiaries
in connection with the performance of their duties.
II-1
<PAGE> 22
In addition, the Registrant's Restated Certificate of Incorporation, as
permitted by Section 102(b) of the GCL, limits directors' liability to the
Registrant and its stockholders by eliminating liability in damages for breach
of fiduciary duty of care. Article Seventh of the Registrant's Restated
Certificate of Incorporation, as amended, provides that neither the Registrant
nor its stockholders may recover damages from the Registrant's directors or
former directors for breach of their duty of care in the performance of their
duties as directors of the Registrant. As limited by Section 102(b), this
provision cannot, however, have the effect of indemnifying any director or
former director of the Registrant in the case of liability (i) for a breach of
the director's duty of loyalty, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the GCL or (iv) for any transactions for which the
director derived an improper personal benefit.
ITEM 16. LIST OF EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement
4.1 Form of Senior Indenture between National City Corporation
and The Bank of New York, as Trustee
4.2 Form of Subordinated Indenture between National City
Corporation and The Bank of New York, as Trustee
4.3* Forms of securities
5.1 Opinion of National City Corporation Law Department
12.1** Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of KPMG LLP
23.3 Consent of National City Corporation Law Department
(included in Exhibit 5.1)
24.1** Power of Attorney of certain directors and officers
25.1** Statement of Eligibility on Form T-1
</TABLE>
- ---------------
* To be filed by post-effective amendment or by a Current Report on Form
8-K.
** Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(1) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(2) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(3) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
II-2
<PAGE> 23
Provided, however, that paragraphs (a)(1) and (a)(2) do not apply if
the Registration Statement is on Form S-3, Form S-8 or form S-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(a) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 24
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 1 TO
ITS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF CLEVELAND AND THE STATE OF OHIO, AS OF
THE 5TH DAY OF MARCH, 1999.
NATIONAL CITY CORPORATION
By: /s/ Thomas A. Richlovsky
------------------------------------
Thomas A. Richlovsky
Senior Vice President and Treasurer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED AS OF THE 5TH DAY OF MARCH,
1999 BY THE FOLLOWING PERSON IN THE CAPACITIES INDICATED:
<TABLE>
<S> <C>
/s/ DAVID A. DABERKO* Chairman and Chief Executive Officer
- -------------------------------------------- (Principal Executive Officer)
David A. Daberko
/s/ ROBERT G. SIEFERS Executive Vice President (Principal
- -------------------------------------------- Financial Officer)
Robert G. Siefers
/s/ THOMAS A. RICHLOVSKY Senior Vice President and Treasurer
- -------------------------------------------- (Principal Accounting Officer)
Thomas A. Richlovsky
/s/ SANDRA H. AUSTIN*
- --------------------------------------------
Sandra H. Austin
/s/ JON E. BARFIELD*
- --------------------------------------------
Jon E. Barfield
/s/ EDWARD B. BRANDON*
- --------------------------------------------
Edward B. Brandon
/s/ JOHN G. BREEN*
- --------------------------------------------
John G. Breen
/s/ JAMES S. BROADHURST*
- --------------------------------------------
James S. Broadhurst
- --------------------------------------------
John W. Brown
/s/ DUANE E. COLLINS*
- --------------------------------------------
Duane E. Collins
/s/ DAVID A. DABERKO*
- --------------------------------------------
David A. Daberko
/s/ DANIEL E. EVANS*
- --------------------------------------------
Daniel E. Evans
/s/ CLIFFORD L. GREENWALT*
- --------------------------------------------
Clifford L. Greenwalt
/s/ BERNADINE P. HEALY, M.D.*
- --------------------------------------------
Bernadine P. Healy, M.D.
</TABLE>
II-4
<PAGE> 25
<TABLE>
<S> <C>
/s/ DOROTHY A. JOHNSON*
- ------------------------------------------------------
Dorothy A. Johnson
/s/ JOSEPH H. LEMIUEX*
- ------------------------------------------------------
Joseph H. Lemiuex
- ------------------------------------------------------
W. Bruce Lunsford
/s/ ROBERT A. PAUL*
- ------------------------------------------------------
Robert A. Paul
/s/ WILLIAM P. ROEMER*
- ------------------------------------------------------
William P. Roemer
/s/ MICHAEL A. SCHULER*
- ------------------------------------------------------
Michael A. Schuler
/s/ STEPHEN A. STITLE*
- ------------------------------------------------------
Stephen A. Stitle
/s/ JEROME F. TATAR*
- ------------------------------------------------------
Jerome F. Tatar
/s/ MORRY WEISS*
- ------------------------------------------------------
Morry Weiss
</TABLE>
- ---------------
* Carlton E. Langer, Vice President and Assistant Secretary of the registrant,
as attorney-in-fact, signs this document on behalf of the above-named
directors pursuant to powers of attorney duly executed by such directors and
filed previously with the Securities and Exchange Commission.
/s/ Carlton E. Langer
--------------------------------------
Carlton E. Langer
Attorney-in-Fact
II-5
<PAGE> 26
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S> <C>
1.1 * Form of Underwriting Agreement
4.1 Form of Senior Indenture between National City Corporation
and the Bank of New York, as Trustee
4.2 Form of Subordinated Indenture between National City
Corporation and the Bank of New York, as Trustee
4.3 * Forms of securities
5.1 Opinion of National City Corporation Law Department
12.1** Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of KPMG LLP
23.3 Consent of National City Corporation Law Department
(included in Exhibit 5.1)
24.1** Power of Attorney of certain directors and officers
25.1** Statement of Eligibility on Form T-1
</TABLE>
- ---------------
* To be filed by post-effective amendment or by a Current Report on Form 8-K.
** Previously filed.
<PAGE> 1
Exhibit 4.1
- -------------------------------------------------------------------------------
NATIONAL CITY CORPORATION,
Issuer
to
THE BANK OF NEW YORK,
Trustee
- -------------------------------------------------------------------------------
SENIOR INDENTURE
- -------------------------------------------------------------------------------
Dated as of _______, 1999
Senior Debt Securities
- -------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
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
Predecessor Security...........................................................7
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C> <C>
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.............................................13
Section 109. Effect of Headings and Table of Contents......................................13
Section 110. Successors and Assigns........................................................13
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...............................................................14
Section 202. Form of Trustee's Certificate of Authentication...............................15
Section 203. Securities in Global Form.....................................................15
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
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........................................22
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...........................26
Section 307. Payment of Interest; Interest Rights Preserved.............................27
Section 308. Persons Deemed Owners......................................................28
Section 309. Cancellation...............................................................28
Section 310. Computation of Interest....................................................29
Section 311. CUSIP Numbers..............................................................29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture....................................29
Section 402. Application of Trust Money.................................................31
Section 403. Satisfaction, Discharge and Defeasance of Securities of Any Series.........31
ARTICLE FIVE
REMEDIES
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........................................................38
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.............................................39
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
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
Page
ARTICLE SIX
THE TRUSTEE
<S> <C> <C>
Section 601. Notice of Defaults.........................................................40
Section 602. Certain Rights of Trustee..................................................41
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.............................................43
Section 607. Corporate Trustee Required; Eligibility; Conflicting Interests.............43
Section 608. Resignation and Removal; Appointment of Successor..........................44
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
Section 701. Company to Furnish Trustee Names and Addresses of Holders..................48
Section 702. Preservation of Information; Communications to Holders.....................49
Section 703. Reports by Trustee.........................................................49
Section 704. Reports by Company.........................................................49
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate Etc., Only on Certain Terms........................50
Section 802. Successor Corporation Substituted for Company..............................51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.........................52
Section 902. Supplemental Indentures with Consent of Holders............................53
Section 903. Execution of Supplemental Indentures.......................................54
Section 904. Effect of Supplemental Indentures..........................................54
Section 905. Conformity with Trust Indenture Act........................................54
Section 906. Reference in Securities to Supplemental Indentures.........................54
</TABLE>
iv
<PAGE> 6
<TABLE>
<CAPTION>
Page
ARTICLE TEN
COVENANTS
<S> <C> <C>
Section 1001. Payment of Principal, Premium, if any, and Interest........................55
Section 1002. Maintenance of Office or Agency............................................55
Section 1003. Money for Securities Payments to Be Held in Trust..........................56
Section 1004. Additional Amounts.........................................................57
Section 1005. Statement as to Compliance; Notice of Certain Defaults.....................58
Section 1006. Limitation Upon Sale or Issuance of Capital Stock of Certain Subsidiaries..59
Section 1007. Limitation on Liens........................................................60
Section 1008. Limitation on Certain Acquisitions.........................................60
Section 1009. Payment of Taxes and Other Claims..........................................61
Section 1010. Corporate Existence........................................................61
Section 1011. Waiver of Certain Covenants................................................61
Section 1012 Calculation of Original Issue Discount.....................................61
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
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.......................................................62
Section 1105. Deposit of Redemption Price................................................63
Section 1106. Securities Payable on Redemption Date......................................64
Section 1107. Securities Redeemed in Part................................................64
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article...................................................65
Section 1202. Satisfaction of Sinking Fund Payments with Securities......................65
Section 1203. Redemption of Securities for Sinking Fund..................................66
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article...................................................66
</TABLE>
v
<PAGE> 7
<TABLE>
<CAPTION>
Page
ARTICLE FOURTEEN
MEETINGS OF HOLDERS
<S> <C> <C>
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.......................................67
Section 1404. Quorum; Action.............................................................67
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meeting.........68
Section 1406. Counting Votes and Recording Action of Meetings............................69
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 1501. Securities in Foreign Currencies...........................................70
</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>
sec.310(a)(1)........................................... 607
(a)(2)........................................... 607
(a)(5)........................................... 607
(b).............................................. 607
sec.311(a)............................................... 604
(b).............................................. 604
(b)(2)........................................... 108
sec.312(a)............................................... 701, 702(a)
(b).............................................. 702(a)
(c).............................................. 702(b)
sec.313(a)............................................... 703 (a) , 703 (b)
(b)(2)........................................... 108
(c).............................................. 703(c)
(d).............................................. 703(c)
sec.314(a)............................................... 704
(c)(1)........................................... 102
(c)(2)........................................... 102
(c)(3)........................................... 108
(e).............................................. 102
sec.315(a)............................................... 108
(b).............................................. 601
(c).............................................. 108
(d).............................................. 108
(d)(1)........................................... 108
(d)(2)........................................... 108
(d)(3)........................................... 108
(e).............................................. 108
sec.316(a)............................................... 104
(a)(1)(A)........................................ 512
(a)(1)(B)........................................ 513
(b).............................................. 508
(c).............................................. 104
sec.317(a)(1)............................................ 505
(a)(2)........................................... 504
(b).............................................. 1003
sec.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 ________, 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;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting
<PAGE> 10
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.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
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"Board of Directors" means the board of directors of the
Company or any committee of that board duly authorized to act for the Company
hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", except as may otherwise be provided herein or
in any Security, 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.
"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.
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"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.
"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.
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<PAGE> 13
"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 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;
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<PAGE> 14
(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.
"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.
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<PAGE> 15
"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.
"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
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<PAGE> 16
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.
"Vice President", with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means stock of a corporation of the class or
classes having general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such
corporation provided that, for the purposes hereof, stock which carries only the
right to vote conditionally on the happening of an event shall not be considered
voting stock whether or not such event shall have happened.
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<PAGE> 17
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 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
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<PAGE> 18
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
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
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<PAGE> 19
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.
(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
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<PAGE> 20
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 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.
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<PAGE> 21
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.
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.
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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.
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.
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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 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.
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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 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
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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 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;
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(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 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
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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;
(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.
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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.
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
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delivered by the Company to the Trustee for authentication pursuant to this
Indenture, and authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights generally, and
subject to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and will entitle the Holders thereof
to the benefits of the Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies;
(c) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and Coupons, if any, have been
complied with; and
(d) as to such other matters as the Trustee may reasonably
request; and
(ii) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such certificate, no Event of Default with
respect to any of the Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such opinion
and certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate or to cause
an Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the 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.
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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 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.
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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 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.
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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 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
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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 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.
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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 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.
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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 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
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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.
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
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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 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
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(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 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.
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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.
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,
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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 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.
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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.
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
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(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 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.
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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,
(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
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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 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
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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 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.
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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 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
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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 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
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(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 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.
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Section 602. Certain Rights of Trustee.
Subject to the provisions of Sections 315(a) through 315(d) of
the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, or other paper or document reasonably
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company
Request or a Company Order (other than delivery of any
Security, together with any Coupons appertaining thereto to
the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution or Board
Resolutions;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be
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
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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;
(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.
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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 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).
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Section 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee pursuant
to Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
(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
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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.
(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
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Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture other than as hereinafter expressly set forth, and each such successor
Trustee without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(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. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become
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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.
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
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(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 September 15 of each year commencing
with the year following the first issuance of Securities pursuant to Section
301, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit pursuant to Section 313(c) of the Trust Indenture Act a brief report
dated as of such September 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding September 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information,
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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, 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
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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 with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities and the Coupons.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent
of Holders.
Without the consent of any Holders of Securities or Coupons,
the Company, when authorized by Board Resolutions, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another
Person to the Company, and the assumption by any such
successor of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company
for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add to or change any of the
provisions of this Indenture to provide that Bearer Securities
may be registrable as to principal, to change or eliminate any
restrictions on the payment of principal (or premium, if any)
on Registered Securities or of principal (or premium, if any)
or any interest on Bearer Securities, to permit Registered
Securities to be exchanged for Bearer Securities or to permit
or facilitate the issuance of Securities in uncertified form,
provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
Coupons appertaining 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
(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
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(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 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.
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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.
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
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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 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
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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.
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; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Except as otherwise provided hereby or pursuant hereto, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest and Additional Amounts on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any Coupon appertaining thereto shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities for such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal (and
premium, if any) 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 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 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
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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
(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
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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 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.
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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.
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.
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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.
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,
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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.
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
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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.
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
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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 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,
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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 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.
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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.
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
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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.
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.
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(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. 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.
69
<PAGE> 78
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.
70
<PAGE> 79
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed , and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
[SEAL] NATIONAL CITY CORPORATION
Attest: By__________________________________
Name:
Title:
[SEAL] THE BANK OF NEW YORK, TRUSTEE
Attest: By___________________________________
Name:
Title:
71
<PAGE> 80
STATE OF OHIO )
: ss.:
COUNTY OF CUYOHOGA )
On the __th day of ______________, 1999, before me personally
came ______________, to me known, who, being by me duly sworn, did depose and
say that he is a [title] of NATIONAL CITY CORPORATION, a Delaware corporation,
one of the persons described in and who executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporation's seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
____________________________________
Notary Public
[NOTARIAL SEAL]
72
<PAGE> 81
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the __th day of ______________, 1999, before me personally
came ______________, to me known, who, being by me duly sworn, did depose and
say that he is a [title] 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.
_______________________________________
Notary Public
[NOTARIAL SEAL]
<PAGE> 1
Exhibit 4.2
------------------------------------------------------------------------------
NATIONAL CITY CORPORATION,
Issuer
to
THE BANK OF NEW YORK,
Trustee
---------------
SUBORDINATED INDENTURE
---------------
Dated as of ___, 1999
Subordinated Debt Securities
-----------------------------------------------------------------------------
<PAGE> 2
Reconciliation and tie between Trust Indenture Act of 1939, as amended,
and Subordinated Indenture, dated as of _________ ___, 1999
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C>
#310 (a)(1).................................................... 607
(a)(2).................................................. 607
(a)(5).................................................. 607
(b)..................................................... 607
#311 (a)........................................................ 607
(b)...................................................... 604
(b)(2)................................................... 604
#312 (a)........................................................ 701, 702(1)
(b)...................................................... 702(1)
(c)...................................................... 702(2)
#313 (a)........................................................ 703(1), 703(2)
(b)(2)................................................... 108
(c)...................................................... 703(3)
(d)...................................................... 703(3)
#314 (a)........................................................ 704
(c)(1)................................................... 102
(c)(2)................................................... 102
(c)(3)................................................... 108
(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)................................................ 512
(a)(1)(B)................................................ 513
(b)...................................................... 508
(c)...................................................... 104
#317 (a)(1)..................................................... 505
(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>
<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
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
Section 306. Mutilated, Destroyed, Lost and Stolen Securities......................................27
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
ARTICLE SIX 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
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY ........................................................................................49
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
</TABLE>
iv
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS.............................................................67
Section 1301. Applicability of Article..............................................................67
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 ______ __, 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
<PAGE> 9
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; 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
2
<PAGE> 10
(ii) any trust company organized under any of the foregoing laws.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act for the Company hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", except as may otherwise be provided herein or in any
Security, 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
3
<PAGE> 11
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.
"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.
4
<PAGE> 12
"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.
"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.
5
<PAGE> 13
"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 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,
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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 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.
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"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.
"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
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(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.
"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.
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"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 and one
or more
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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 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
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Holders, and a U.S. Depository that is a Holder of a global Security may provide
its proxy or proxies to the beneficial owners of interests in any such global
Security through such U.S. Depository's standing instructions and customary
practices.
The Trustee shall fix a record date, which shall be not more than 30
days prior to the first solicitation of Holders, for the purpose of determining
the Persons who are beneficial owners of interest in any permanent global
Security held by a U.S. Depository entitled under the procedures of such U.S.
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice,
consent, waiver or other action, whether or not such Holders remain Holders
after such record date. No such request, demand, authorization, direction,
notice, consent, waiver or other action shall be valid or effective if made,
given or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the 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.
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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 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.
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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, 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.
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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.
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
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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.
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
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endorsement of any Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered pursuant to Section 303 or 304 with respect thereto. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the 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.
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;
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(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;
(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;
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(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;
(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;
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(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;
(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).
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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 Resolution or Resolutions and
Officers' Certificate or supplemental indenture or indentures with respect to
such Securities referred to in Section 301 and a Company Order for the
authentication and delivery of such Securities, has been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof of such Securities shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
Coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(b) of the Trust Indenture Act) shall be
fully protected in relying upon,
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<PAGE> 29
(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 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.
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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 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.
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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 payable only
upon presentation and surrender of those Coupons at an office or agency for such
series located outside the United States.
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<PAGE> 32
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 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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<PAGE> 33
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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<PAGE> 34
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
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(2) 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. 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
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series) on any Regular Record Date and before the opening of business (at such
office or agency) on the next succeeding Interest Payment Date, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest will not be payable on such Interest Payment Date in
respect of the Registered Security issued in exchange of such Bearer Security,
but will be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
Any interest on any Registered Security of any series which shall be
payable, but shall not be punctually paid or duly provided for, on any Interest
Payment Date for such Registered Security (herein called "Defaulted Interest")
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder; and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in Clause (1) or
(2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered
Securities affected (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Registered
Security and the date of the proposed payment. 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
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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 (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
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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 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
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(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
(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;
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(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money shall
have been deposited with the 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):
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(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 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,
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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 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
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property of the Company or any other obligor upon such Securities and Coupons
(if any), wherever situated.
If a default (as defined in Section 513) occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any Coupons appertaining
thereto by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or such Securities or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise
(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.
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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 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;
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(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.
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
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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
(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.
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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. 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;
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(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
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.
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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.
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
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(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.
(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
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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
(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
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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.
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
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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, 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,
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(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 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).
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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 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.
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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.
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
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(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 March 15 of each year commencing with the year
following the first issuance of Securities pursuant to Section 301, if required
by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit
pursuant to Section 313(c) of the Trust Indenture Act a brief report dated as of
such September 15 with respect to any of the events specified in said Section
313(a) which may have occurred since the later of the immediately preceding
September 15 and the date of this Indenture.
(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
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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.
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
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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 conditions
precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED FOR COMPANY.
Upon any consolidation or merger or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease to another Person, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities and the Coupons.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the
Company, when authorized by Board Resolutions, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the
payment of principal (or premium, if any) on Registered
Securities or of principal (or premium, if any) or any
interest on Bearer Securities, to permit Registered Securities
to be exchanged for Bearer Securities or to permit or
facilitate the issuance of Securities in uncertified form,
provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
Coupons appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 201
and 301; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than 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
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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,
(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)),
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(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.
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.
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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 Senior
Indebtedness then outstanding, unless each holder of such Senior Indebtedness
has consented thereto in writing.
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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 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
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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.
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SECTION 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security of any
such series or any Coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest on, or in respect
of, any Security of any series or any Coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided by the terms of
such series established hereby or pursuant hereto to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms and express mention of the payment of Additional Amounts
(if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise provided herein or pursuant hereto, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to such series of
Securities (or if the Securities of that series shall not bear interest prior to
Maturity, the first day on which a payment of principal and 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 DEFAULT
(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
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(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 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
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of portions of the principal amount of Registered Securities of such
series. However, 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.
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,
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(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, 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.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
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. 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
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series is herein referred to as an "optional sinking fund payment". If provided
for by the terms of Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to the
terms of such Securities as provided for by the terms of such series
(1) deliver Outstanding Securities of such series (other than any
of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been
released to the Company), together in the case of any Bearer
Securities of such series with all unmatured Coupons
appertaining thereto, and
(2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the
terms of such series of Securities or through the application
of permitted optional sinking fund payments pursuant to the
terms of such Securities, 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
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shall thereupon be obligated to pay the amount therein specified. Not less than
60 days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be 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
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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.
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
(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.
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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 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.
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(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 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
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insolvency or bankruptcy, then the holders of Senior
Indebtedness shall be entitled to receive payment in full of
all principal, premium and interest on all Senior Indebtedness
before the Holders of the Securities are entitled to receive
any payment on account of principal, premium, if any, interest
or Additional Amounts upon the Securities, and to that end
(but subject to the power of a court of competent jurisdiction
to make other equitable provisions reflecting the rights
conferred in the Securities upon Senior Indebtedness and the
Holders thereof with respect to the subordinated indebtedness
represented by the Securities and the Holders hereof by a
lawful plan of reorganization under applicable bankruptcy law)
the holders of Senior Indebtedness shall be entitled to
receive for application in payment thereof any payment or
distribution of any kind or character, whether in cash or
property or securities, which may be payable or deliverable in
any such proceedings in respect of the Securities after giving
effect to any concurrent payment or distribution in respect of
such Senior Indebtedness, except securities which are
subordinate and junior in right of payment to the payment of
all Senior Indebtedness then outstanding;
(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
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(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 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.
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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 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.
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SECTION 1504. PAYMENTS ON SECURITIES PERMITTED.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture, or in any of the Securities, shall affect the obligation of the
Company to make, or prevent the Company from making payment of the principal of
(or premium, if any), interest or any Additional Amounts on the Securities in
accordance with the provisions hereof and thereof, except as otherwise provided
in this Article Fifteen.
SECTION 1505. EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Securities, by his 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.
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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.
* * * * *
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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:
______________________________________ By _____________________________________
Name:
[SEAL] Title:
THE BANK OF NEW YORK
By _____________________________________
Name:
Title:
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STATE OF OHIO )
:
COUNTY OF CUYAHOGA )
On the ____ day of ____________, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is a [title] of NATIONAL CITY CORPORATION, a Delaware corporation, one
of the persons described in and who executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporation's seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
[NOTARIAL SEAL] ___________________________
Notary Public
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STATE OF NEW YORK )
:
COUNTY OF NEW YORK )
On the ____ day of ____________, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is a [title] 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.
[NOTARIAL SEAL] ___________________________
Notary Public
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Exhibit 5.1
National City Corporation
1900 East Ninth Street
Cleveland OH 44114-3484
March 5, 1999
Ladies and Gentlemen:
The law department acts as counsel to National City Corporation (the
"Company") and in connection with the Company's issuance and sale of up to
$1,000,000,000 aggregate principal amount of its senior or subordinated
unsecured debt securities (the "Debt Securities"), pursuant to its Registration
Statement on Form S-3, as amended (the "Registration Statement") filed
as of this date by the Company with the Securities and Exchange Commission (the
"Commission"). We are familiar with the proceedings heretofore taken, and are
familiar with the additional proceedings proposed to be taken, by the Company in
connection with the authorization, issuance, authentication and sale of the Debt
Securities.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In our examination, we have
assumed the validity of all signatures, the legal capacity of all natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such copies.
Based on the foregoing and subject to the proposed additional
proceedings required for the due designation of the specific terms of the Debt
Securities by the Board of Directors of the Company, or a Committee thereof
duly designated and empowered for such purpose, being duly taken and completed
by the Company as now contemplated prior to the issuance to the Debt
Securities, we are of the opinion that:
1. The form of Senior Indenture between the Company and The Bank of
New York, as Trustee, filed as Exhibit 4.1 to the Registration
Statement (the "Senior Indenture") when duly executed and
delivered by the Company and The Bank of New York will
constitute a valid and binding instrument of the Company and
will comply with the requirements of the Trust Indenture Act of
1939, as amended (the "1939 Act").
2. The Subordinated Indenture between the Company and The Bank of
New York, as Trustee, filed as Exhibit 4.2 to the Registration
Statement (the "Subordinated Indenture" and collectively with
the Senior Indenture, the "Indentures") when duly executed and
delivered by the Company and The Bank of New York will
constitute a valid and binding instrument of the Company and
will comply with the requirements of the 1939 Act.
3. The Debt Securities have been duly authorized and, when duly
executed and authenticated in accordance with the provisions of
the applicable Indenture and when delivered and paid for, will
constitute valid and binding obligations of the Company and
will be entitled to the benefits of the applicable Indenture.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to us, as counsel for the Company
under the caption "Legal Opinions" in the prospectus comprising a part of such
Registration Statement.
Very truly yours,
/s/ Carlton E. Langer
Carlton E. Langer
Vice President and Assistant Secretary
<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 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
February 25, 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 herein by reference and to the reference of our firm
under the heading "Experts" in the prospectus.
/s/ KPMG LLP
Chicago, Illinois
March 1, 1999
