AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 21, 1997
REGISTRATION NO. 333-29433
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
OLD NATIONAL BANCORP
(Exact name of registrant as specified in its charter)
INDIANA 35-1439838
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
420 MAIN STREET, EVANSVILLE, INDIANA 47708, (812) 464-1434
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(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Jeffrey L. Knight, Esq., Corporate Secretary & General Counsel
Old National Bancorp, 420 Main Street, Evansville, Indiana 47708
(812) 464-1363 (Agent for Service)
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Timothy M. Harden, Esq. J. Jeffrey Brown, Esq.
Nicholas J. Chulos, Esq. Baker & Daniels
Krieg DeVault Alexander & Capehart 300 North Meridian Street, Suite 2700
One Indiana Square, Suite 2800 Indianapolis, Indiana 46204-1782
Indianapolis, Indiana 46204-2017 (317) 237-0300
(317) 636-4341
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME OR AT ONE TIME AFTER THE EFFECTIVE DATE OF
THE REGISTRATION STATEMENT.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box [ ].
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box [X].
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering [ ].
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering [ ].
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box [X].
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
<PAGE>
PROSPECTUS SUPPLEMENT
(To Prospectus dated July 23, 1997)
$150,000,000
OLD NATIONAL BANCORP
[ONB LOGO]
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
____________________________
Old National Bancorp (the "Company") may offer from time to time up
to $150,000,000 aggregate initial offering price of its Medium-Term Notes Due
Nine Months or More from Date of Issue (the "Notes"). Such aggregate initial
offering price is subject to reduction as a result of the sale by the Company
of other Debt Securities described in the accompanying Prospectus. Each Note
will mature on any day nine months or more from the date of issue, as
specified in the applicable pricing supplement hereto (each, a "Pricing
Supplement"), and may be subject to redemption at the option of the Company or
repayment at the option of the Holder thereof, in each case, in whole or in
part, prior to its Stated Maturity Date, if specified in the applicable
Pricing Supplement. Each Note will be denominated and payable in United
States dollars. The Notes will be issued in minimum denominations of $1,000
and in integral multiples of $1,000 in excess thereof, unless otherwise
specified in the applicable Pricing Supplement.
SEE "RISK FACTORS" COMMENCING ON PAGE S-3 FOR A DISCUSSION OF CERTAIN
RISKS THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE NOTES
OFFERED HEREBY.
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THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF
ANY BANK OR NON-BANK AFFILIATE OF THE COMPANY AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT, THE PROSPECTUS OR ANY
PRICING SUPPLEMENT HERETO. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
<TABLE>
<CAPTION>
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Agent's Discounts
Price to Public (1) and Commissions (1)(2) Proceeds to Company (1)(3)
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>>
Per Note. . . . . . 100% .125% - .750% 99.875% - 99.250%
Total . . . . . . . $150,000,000 $187,500 - $1,125,000 $149,812,500 - $148,875,000
- ------------------------------------------------------------------------------------------------------
</TABLE>
(1) NatCity Investments, Inc. (the "Agent"), may utilize its reasonable
efforts on an agency basis to solicit offers to purchase the Notes at
100% of the principal amount thereof, unless otherwise specified in
the applicable Pricing Supplement. The Agent may also purchase
Notes, as principal, from the Company for resale to investors and
other purchasers at varying prices relating to prevailing market
prices at the time of resale as determined by the Agent or, if so
specified in the applicable Pricing Supplement, for resale at a fixed
offering price. Unless otherwise specified in the applicable Pricing
Supplement, any Note sold to the Agent as principal will be purchased
by the Agent at a price equal to 100% of the principal amount thereof
less a percentage of the principal amount equal to the commission
applicable to an agency sale (as described below) of a Note of
identical maturity. The Company will pay a commission to the Agent,
ranging from .125% to .750% of the principal amount of a Note,
depending upon its stated maturity, sold through the Agent.
Commissions with respect to Notes with stated maturities in excess of
30 years that are sold through the Agent will be negotiated between
the Company and the Agent at the time of such sale. See "PLAN OF
DISTRIBUTION."
(2) The Company has agreed to indemnify the Agent against, and in certain
instances to provide contribution with respect to, certain
liabilities, including liabilities under the Securities Act of 1933,
as amended. See "PLAN OF DISTRIBUTION."
(3) Before deducting expenses payable by the Company estimated at
$360,000.
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The Notes are being offered from time to time on a continuing basis
by the Company to or through the Agent. Unless otherwise specified in the
applicable Pricing Supplement, the Notes will not be listed on any securities
exchange. There is no assurance that the Notes offered hereby will be sold
or, if sold, that there will be a secondary market for the Notes or liquidity
in the secondary market if one develops. The Company reserves the right to
cancel or modify the offer made hereby without notice. The Company or the
Agent, if it solicits an offer on an agency basis, may reject any offer to
purchase Notes in whole or in part. See "PLAN OF DISTRIBUTION."
NatCity Investments, Inc.
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THE DATE OF THIS PROSPECTUS SUPPLEMENT IS JULY 23, 1997.
<PAGE>
The Company may issue Notes that bear interest at fixed rates ("Fixed
Rate Notes") or at floating rates ("Floating Rate Notes"). The applicable
Pricing Supplement will specify whether a Floating Rate Note is a Regular
Floating Rate Note, a Floating Rate/Fixed Rate Note or an Inverse Floating
Rate Note and whether the rate of interest thereon is determined by reference
to one or more of the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Eleventh District Cost of Funds Rate, the Federal Funds Rate, LIBOR, the Prime
Rate or the Treasury Rate (each, an "Interest Rate Basis"), or any other
interest rate basis or formula, as adjusted by any Spread and/or Spread
Multiplier. Interest on each Floating Rate Note will accrue from its date of
issue and, unless otherwise specified in the applicable Pricing Supplement,
will be payable monthly, quarterly, semiannually or annually in arrears, as
specified in the applicable Pricing Supplement, and on the Maturity Date.
Unless otherwise specified in the applicable Pricing Supplement, the rate of
interest on each Floating Rate Note will be reset daily, weekly, monthly,
quarterly, semiannually or annually, as specified in the applicable Pricing
Supplement. Interest on each Fixed Rate Note will accrue from its date of
issue and, unless otherwise specified in the applicable Pricing Supplement,
will be payable semiannually in arrears on February 15 and August 15 of each
year and on the Maturity Date. The Company may also issue Discount Notes,
Indexed Notes and Amortizing Notes (as hereinafter defined). See "DESCRIPTION
OF NOTES."
The interest rate, or formula for the determination of the interest
rate, if any, applicable to each Note and any other variable terms thereof
will be established by the Company on the date of issue of such Note and will
be specified in the applicable Pricing Supplement. Interest rates or formulas
and other terms of Notes are subject to change by the Company, but no such
change will affect any Note previously issued or as to which an offer to
purchase has been accepted by the Company.
Each Note will be issued in book-entry form (a "Book-Entry Note") or
in fully registered certificated form (a "Certificated Note"), as specified in
the applicable Pricing Supplement. Each Book-Entry Note will be represented
by one or more fully registered global securities (the "Global Securities")
deposited with or on behalf of The Depository Trust Company (or such other
depositary identified in the applicable Pricing Supplement) (the "Depository")
and registered in the name of the Depository or the Depository's nominee.
Interests in the Global Securities will be shown on, and transfers thereof
will be effected only through, records maintained by the Depository (with
respect to its participants) and the Depository's participants (with respect
to beneficial owners). Except in limited circumstances, Book-Entry Notes will
not be exchangeable for Certificated Notes.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE NOTES. SUCH
TRANSACTIONS MAY INCLUDE THE PURCHASE OF NOTES PRIOR TO THE PRICING OF THE
OFFERING FOR THE PURPOSE OF MAINTAINING THE PRICE OF THE NOTES, THE PURCHASE
OF NOTES FOLLOWING THE PRICING OF THE OFFERING TO COVER A SHORT POSITION IN
THE NOTES OR FOR THE PURPOSE OF MAINTAINING THE PRICE OF THE NOTES. SUCH
TRANSACTIONS MAY HAVE THE EFFECT OF MAINTAINING THE PRICE OF NOTES AT A HIGHER
LEVEL THAN MIGHT EXIST IF SUCH STABILIZATION HAD NOT OCCURRED. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION."
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RISK FACTORS
This Prospectus Supplement does not describe all of the risks of an
investment in any Notes, whether resulting from such Notes being determined by
reference to one or more interest rate or other indices or formulas, or
otherwise. The Company and the Agent disclaim any responsibility to advise
prospective investors of such risks as they exist at the date of this
Prospectus Supplement or as they change from time to time. Prospective
investors should consult their own financial and legal advisors as to the
risks entailed by an investment in such Notes and the suitability of investing
in the Notes in light of their particular circumstances. Such Notes are not
an appropriate investment for investors who are unsophisticated with respect
to transactions involving the applicable interest rate index or other indices
or formulas. Prospective investors should carefully consider, among other
factors, the matters described below.
STRUCTURE RISKS
An investment in Notes indexed as to principal, premium, if any,
and/or interest, if any, to one or more interest rate or other indices or
formulas, either directly or inversely, entails significant risks that are not
associated with similar investments in a conventional fixed rate or floating
rate debt security. Such risks include, without limitation, the possibility
that such indices or formulas may be subject to significant changes, that no
interest will be payable with respect to such Notes or will be payable at a
rate lower than one applicable to a conventional fixed rate or floating rate
debt security issued by the Company at the same time, that repayment of the
principal and/or premium, if any, in respect to such Notes may occur at times
other than that expected by the Holders (as defined in the accompanying
Prospectus), and that the Holders could lose all or a substantial portion of
principal and/or premium, if any, payable with respect to such Notes on the
Maturity Date (as defined under "DESCRIPTION OF NOTES--General"). Such risks
depend on a number of independent and interrelated factors, including
economic, financial and political events, over which the Company has no
control. Additionally, if the formula used to determine the amount of
principal, premium, if any, and/or interest, if any, payable in respect to
such Notes contains a multiplier or leverage factors, the effect of any change
in the applicable index or indices or formula or formulas will be magnified.
In recent years, values of certain indices and formulas have been highly
volatile and such volatility may be expected to continue in the future.
Fluctuations in the value of any particular index or formula that have
occurred in the past are not necessarily indicative, however, of fluctuations
that may occur in the future.
Any optional redemption feature of Notes might affect the market
value of such Notes. Since the Company may be expected to redeem such Notes
when prevailing interest rates are relatively low, Holders generally would not
be able to reinvest the redemption proceeds in a comparable security at an
effective interest rate as high as the current interest rate on such Notes.
The Notes will not have an established trading market when issued,
and there can be no assurance of a secondary market for the Notes or of the
liquidity of the secondary market if one develops. See "PLAN OF
DISTRIBUTION."
S-3
<PAGE>
The secondary market, if any, for the Notes will be affected by a
number of factors independent of the creditworthiness of the Company and the
applicable index or indices or formula or formulas, including the complexity
and volatility of each such index or formula, the method of calculating the
principal, premium, if any, and/or interest, if any, with respect to such
Notes, the time remaining to the maturity of such Notes, the outstanding
amount of such Notes, any redemption features of such Notes, the amount of
other debt securities linked to such index or formula and the level, direction
and volatility of market interest rates generally. Such factors also will
affect the market value of such Notes. In addition, certain Notes may be
designed for specific investment objectives or strategies and, therefore, may
have a more limited secondary market and experience more price volatility than
conventional debt securities. Holders may not be able to sell such Notes
readily or at prices that will enable them to realize their anticipated yield.
No investor should purchase Notes unless such investor understands and is able
to bear the risk that such Notes may not be readily saleable, that the value
of such Notes will fluctuate over time and that such fluctuations may be
significant.
CREDIT RATINGS
The credit ratings assigned to this medium-term note program do not
reflect the potential impact of all risks related to structure and other
factors on the value of the Notes. Accordingly, prospective investors should
consult their own financial and legal advisors as to the risks entailed by an
investment in the Notes and the suitability of investing in such Notes in
light of their particular circumstances.
DESCRIPTION OF NOTES
The Notes will be issued as a series of Debt Securities under an
Indenture, dated as of July 23, 1997, as amended, supplemented or modified
from time to time (the "Indenture"), between the Company and Bank One, NA,
as trustee (together with any successor in such capacity, the "Trustee"). The
Indenture is subject to, and governed by, the Trust Indenture Act of 1939, as
amended. The following summary of certain provisions of the Notes and the
Indenture does not purport to be complete and is qualified in its entirety by
reference to the actual provisions of the Notes and the Indenture. Capitalized
terms used but not otherwise defined herein have the meanings given to them in
the accompanying Prospectus, the Notes or the Indenture, as the case may be.
The term "Debt Securities," as used in this Prospectus Supplement, refers to
all debt securities, including the Notes, issued and issuable from time to
time under the Indenture. The following description of Notes will apply to
each Note offered hereby unless otherwise specified in the applicable Pricing
Supplement.
GENERAL
All Debt Securities, including the Notes, issued and to be issued
under the Indenture will be direct, unsecured obligations of the Company and
will rank equally with each other and with all other unsecured and
unsubordinated indebtedness of the Company that currently is outstanding or
that may
S-4
<PAGE>
from time to time be outstanding. The Indenture does not limit the aggregate
initial offering price of Debt Securities that may be issued thereunder, and
Debt Securities may be issued thereunder from time to time in one or more
series up to the aggregate initial offering price from time to time authorized
by the Company for each series. The Company may, from time to time, without
the consent of the Holders of the Notes, provide for the issuance of Notes or
other Debt Securities under the Indenture in addition to the $150,000,000
aggregate initial offering price of Notes offered hereby.
The Notes are currently limited to an aggregate initial offering
price of up to $150,000,000. The Notes will be offered from time to time on a
continuous basis and will mature on any day nine months or more from their
date of issue (the "Stated Maturity Date"), as specified in the applicable
Pricing Supplement, unless the principal thereof (or any installment of
principal thereof) becomes due and payable prior to the Stated Maturity Date,
whether by the declaration of acceleration of maturity, notice of redemption
at the option of the Company, if applicable, notice of the Holder's option to
elect repayment, if applicable, or otherwise (the Stated Maturity Date or such
prior date, as the case may be, is herein referred to as the "Maturity Date"
with respect to the principal of such Note repayable on such date). Unless
otherwise specified in the applicable Pricing Supplement, interest-bearing
Notes will either be Fixed Rate Notes or Floating Rate Notes, as specified in
the applicable Pricing Supplement. The Company may also issue Discount Notes,
Indexed Notes and Amortizing Notes (as such terms are hereinafter defined).
Interest rates offered by the Company with respect to the Notes may
differ depending upon, among other factors, the aggregate principal amount of
Notes purchased in any single transaction. Notes with different variable
terms other than interest rates may also be offered concurrently to different
investors. Interest rates or formulas and other terms of Notes are subject to
change by the Company from time to time, but no such change will affect any
Note previously issued or as to which an offer to purchase has been accepted
by the Company.
Each Note will be issued as a Book-Entry Note represented by one or
more fully registered Global Securities or as a fully registered Certificated
Note. The minimum denominations of each Note will be $1,000 and integral
multiples of $1,000 in excess thereof, unless otherwise specified in the
applicable Pricing Supplement. The Notes will be denominated in, and payments
of principal, premium, if any, and/or interest, if any, in respect thereof
will be made in, United States dollars. References herein to "United States
dollars," "U.S. dollars" or "$" are to the lawful currency of the United
States of America (the "United States").
Payments of principal of, and premium, if any, and interest, if any,
on, Book-Entry Notes will be made by the Company through the Trustee to the
Depository. See "DESCRIPTION OF NOTES--Book-Entry Notes." In the case of
Certificated Notes, payment of principal and premium, if any, due on the
Maturity Date will be made in immediately available funds upon presentation
and surrender thereof at the office or agency maintained by the Company for
such purpose (or, in the case of any repayment on an Optional Repayment Date,
upon presentation of such Certificated Note and a duly completed election form
in accordance with the provisions described below), which is currently the
corporate trust office of the Trustee located initially at 100 East Broad
Street, Eighth Floor, Columbus, Ohio 43215, and the New York facility of the
Trustee's agent located initially at 14 Wall Street, New York, New York 10002.
Payment of interest due on the
S-5
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Maturity Date of each Certificated Note will be made to the person to whom
payment of the principal and premium, if any, will be made. Payment of
interest due on each Certificated Note on any Interest Payment Date (as
hereinafter defined) other than the Maturity Date will be made at the office
or agency referred to above maintained by the Company for such purpose or, at
the option of the Company, may be made by check mailed to the address of the
Holder entitled thereto as such address will appear in the Security Register
of the Company. Notwithstanding the foregoing, a Holder of $10,000,000 or more
in aggregate principal amount of Certificated Notes (whether having identical
or different terms and provisions) will be entitled to receive interest
payments, if any, on any Interest Payment Date other than the Maturity Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
days prior to such Interest Payment Date. Any such wire transfer instructions
received by the Trustee will remain in effect until revoked by such Holder.
As used herein, "Business Day" means any day, other than a Saturday
or Sunday, that is not a day on which banking institutions are authorized or
required by law, regulation or executive order to close in Columbus, Ohio or
The City of New York; provided, however, that, with respect to Notes as to
which LIBOR is an applicable Interest Rate Basis, such day is also a London
Business Day. "London Business Day" means any day on which dealings in United
States dollars are transacted in the London interbank market.
Book-Entry Notes may be transferred or exchanged only through the
Depository. See "DESCRIPTION OF NOTES--Book-Entry Notes." Registration of
transfer or exchange of Certificated Notes will be made at the office or
agency maintained by the Company for such purpose, which is currently the
corporate trust office of the Trustee located at 100 East Broad Street, Eighth
Floor, Columbus, Ohio 43215, and the New York facility of the Trustee's agent
located initially at 14 Wall Street, New York, New York 10002. No service
charge will be made by the Company or the Trustee for any such registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith (other than exchanges pursuant to the Indenture not
involving any transfer).
The satisfaction and discharge and covenant defeasance provisions
contained in the Indenture will apply to the Notes.
Notwithstanding any provisions described in this Prospectus
Supplement to the contrary, if a Note specifies that an Addendum is attached
thereto or that "Other/Additional Provisions" apply, such Note will be subject
to the terms specified in such Addendum or "Other/Additional Provisions," as
the case may be, and will be described in the applicable Pricing Supplement.
REDEMPTION AT THE OPTION OF THE COMPANY
Unless otherwise specified in the applicable Pricing Supplement, the
Notes will not be subject to any sinking fund. The Notes will be redeemable at
the option of the Company prior to the Stated Maturity Date only if an Initial
Redemption Date is specified in the applicable Pricing Supplement. If so
specified, the Notes will be subject to redemption at the option of the
Company on any date on and after the applicable Initial Redemption Date, in
whole or from time to time in
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part, in increments of $1,000 or such other minimum denomination specified in
such Pricing Supplement (provided that any remaining principal amount thereof
will be at least $1,000 or such minimum denomination), at the applicable
Redemption Price (as hereinafter defined), together with unpaid interest
accrued thereon to the date of redemption, on written notice given to the
Holders thereof at least 30 but not more than 60 calendar days prior to the
date of redemption and in accordance with the provisions of the Indenture.
"Redemption Price," with respect to a Note, means an amount equal to the
Initial Redemption Percentage specified in the applicable Pricing Supplement
(as adjusted by the Annual Redemption Percentage Reduction, if applicable)
multiplied by the unpaid principal amount to be redeemed. The Initial
Redemption Percentage, if any, applicable to a Note will decline at each
anniversary of the Initial Redemption Date by an amount equal to the
applicable Annual Redemption Percentage Reduction, if any, until the
Redemption Price is equal to 100% of the unpaid principal amount to be
redeemed. For a discussion of the redemption of Discount Notes, see
"DESCRIPTION OF NOTES--Discount Notes."
REPAYMENT AT THE OPTION OF THE HOLDER
The Notes will be repayable by the Company at the option of the
Holders thereof prior to the Stated Maturity Date only if one or more Optional
Repayment Dates are specified in the applicable Pricing Supplement. If so
specified, the Notes will be subject to repayment at the option of the Holders
thereof on any Optional Repayment Date, in whole or from time to time in part,
in increments of $1,000 or such other minimum denomination specified in the
applicable Pricing Supplement (provided that any remaining principal amount
thereof will be at least $1,000 or such other minimum denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date of repayment. For
any Note to be repaid, such Note must be received, together with the form
thereon entitled "Option to Elect Repayment" duly completed, by the Trustee at
its office maintained for such purpose, currently the corporate trust office
of the Trustee located at 100 East Broad Street, Eighth Floor, Columbus, Ohio
43215, and the New York facility of the Trustee's agent located initially at
14 Wall Street, New York, New York 10002 (or such other address of which the
Company will from time to time notify the Holders), at least 30 but not more
than 60 calendar days prior to the date of repayment. Exercise of such
repayment option by the Holder will be irrevocable. For a discussion of the
repayment of Discount Notes, see "DESCRIPTION OF NOTES--Discount Notes."
Only the Depository may exercise the repayment option in respect of
Global Securities representing Book-Entry Notes. Accordingly, Beneficial
Owners (as hereinafter defined) of Global Securities that desire to have all
or any portion of the Book-Entry Notes represented by such Global Securities
repaid must instruct the Participant (as hereinafter defined) through which
they own their interest to direct the Depository to exercise the repayment
option on their behalf by delivering the related Global Security and duly
completed election form to the Trustee as set forth above. In order to ensure
that such Global Security and election form are received by the Trustee on a
particular day, the applicable Beneficial Owner must so instruct the
Participant through which it owns its interest before such Participant's
deadline for accepting instruction for that day. Different firms may have
different deadlines for accepting instructions from their customers.
Accordingly, Beneficial Owners should consult the Participants through which
they own their interest for the respective deadlines for such Participants.
All instructions given to Participants from Beneficial Owners of Global
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Securities relating to the option to elect repayment will be irrevocable. In
addition, at the time such instructions are given, each such Beneficial Owners
will cause the Participant through which it owns its interest to transfer such
Beneficial Owner's interest in the Global Security or Securities representing
the related Book-Entry Notes, on the Depository's records, to the Trustee. See
"DESCRIPTION OF NOTES--Book-Entry Notes."
If applicable, the Company will comply with the requirements of
Section 14(e) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Rule 14e-1 of the rules promulgated thereunder, and any
other securities laws or regulations in connection with any such repayment.
The Company may at any time purchase Notes at any price or prices in
the open market or otherwise. Notes so purchased by the Company may, at the
discretion of the Company, be held, resold or surrendered to the Trustee for
cancellation.
INTEREST
General
Unless otherwise specified in the applicable Pricing Supplement, each
interest-bearing Note will bear interest from its date of issue at the rate
per annum, in the case of a Fixed Rate Note, or pursuant to the interest rate
formula, in the case of a Floating Rate Note, in each case as specified in the
applicable Pricing Supplement, until the principal thereof is paid or duly
made available for payment. Unless otherwise specified in the applicable
Pricing Supplement, interest payments with respect to Fixed Rate Notes and
Floating Rate Notes will be made in an amount equal to the interest accrued
from and including the immediately preceding Interest Payment Date in respect
of which interest has been paid or fully made available for payment (or from
and including the date of issue, if no interest has been paid or duly made
available for payment with respect to the applicable Note) to but excluding
the applicable Interest Payment Date or the Maturity Date, as the case may be
(each, an "Interest Period").
Interest on Fixed Rate Notes and Floating Rate Notes will be payable
in arrears on each Interest Payment Date and on the Maturity Date. Unless
otherwise specified in the applicable Pricing Supplement, the first payment of
interest on any such Note originally issued between a Regular Record Date (as
hereinafter defined) and the related Interest Payment Date will be made on the
Interest Payment Date immediately following the next succeeding Regular Record
Date to the Holder on such next succeeding Regular Record Date. Unless
otherwise specified in the applicable Pricing Supplement, a "Regular Record
Date" will be the fifteenth calendar day (whether or not a Business Day)
immediately preceding the related Interest Payment Date.
Fixed Rate Notes
Unless otherwise specified in the applicable Pricing Supplement,
interest on Fixed Rate Notes will be payable on February 15 and August 15 of
each year (each, an "Interest Payment Date"
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with respect to Fixed Rate Notes) and on the Maturity Date. Unless otherwise
specified in the applicable Pricing Supplement, interest on Fixed Rate Notes
will be computed on the basis of a 360-day year of twelve 30-day months.
If any Interest Payment Date or the Maturity Date of a Fixed Rate
Note falls on a day that is not a Business Day, the required payment of
principal, premium, if any, and/or interest will be made on the next
succeeding Business Day with the same force and effect as if made on the date
such payment was due, and no interest will accrue on such payment for the
period from and after such Interest Payment Date or the Maturity Date, as the
case may be, to the date of such payment on the next succeeding Business Day.
Floating Rate Notes
Interest on Floating Rate Notes will be determined by reference to
the applicable Interest Rate Basis or Interest Rate Bases, which may, as
described below, include (i) the CD Rate, (ii) the CMT Rate, (iii) the
Commercial Paper Rate, (iv) the Eleventh District Cost of Funds Rate, (v) the
Federal Funds Rate, (vi) LIBOR, (vii) the Prime Rate, (viii) the Treasury
Rate, or (ix) such other Interest Rate Basis or interest rate formula as may
be specified in the applicable Pricing Supplement; provided, however, that the
interest rate in effect on a Floating Rate Note for the period, if any, from
the date of issue to the first Interest Reset Date (as hereinafter defined)
will be the Initial Interest Rate; provided, further, that with respect to a
Floating Rate/Fixed Rate Note, the interest rate in effect for the period
commencing on the Fixed Rate Commencement Date to the Maturity Date will be
the Fixed Interest Rate, if such rate is specified in the applicable Pricing
Supplement or, if no such Fixed Interest Rate is specified, the interest rate
in effect thereon on the day immediately preceding the Fixed Rate Commencement
Date. The applicable Pricing Supplement will specify certain terms with
respect to which each Floating Rate Note is being delivered, including:
whether such Floating Rate Note is a "Regular Floating Rate Note," a "Floating
Rate/Fixed Rate Note" or an "Inverse Floating Rate Note," the Fixed Rate
Commencement Date, if applicable, Fixed Interest Rate, if applicable, Interest
Rate Basis or Bases, Initial Interest Rate, if any, Initial Interest Reset
Date, Interest Reset Dates, Interest Payment Period and Dates, Index Maturity,
Maximum Interest Rate and/or Minimum Interest Rate, if any, and Spread and/or
Spread Multiplier, if any, as such terms are defined below. If one or more of
the applicable Interest Rate Bases is LIBOR or the CMT Rate, the applicable
Pricing Supplement will also specify the Designated LIBOR Page or the
Designated CMT Maturity Index and Designated CMT Telerate Page, respectively,
as such terms are defined below.
The interest rate borne by the Floating Rate Notes will be determined
as follows:
(i) Unless such Floating Rate Note is designated as a
"Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate Note",
or as having an Addendum attached or having "Other/Additional
Provisions" apply, in each case relating to a different interest rate
formula, such Floating Rate Note will be designated as a "Regular
Floating Rate Note" and, except as described below or in the
applicable Pricing Supplement, will bear interest at the rate
determined by reference to the applicable Interest Rate Basis or
Bases (a) plus or minus the
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applicable Spread, if any, and/or (b) multiplied by the applicable
Spread Multiplier, if any. Commencing on the Initial Interest Reset
Date, the rate at which interest on such Regular Floating Rate Note
will be payable will be reset as of each Interest Reset Date;
provided, however, that the interest rate in effect for the period,
if any, from the date of issue to the Initial Interest Reset Date
will be the Initial Interest Rate.
(ii) If such Floating Rate is designated as a "Floating
Rate/Fixed Rate Note," then, except as described below or in the
applicable Pricing Supplement, such Floating Rate Note will bear
interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the applicable Spread,
if any, and/or (b) multiplied by the applicable Spread Multiplier, if
any. Commencing on the Initial Interest Reset Date, the rate at
which interest on such Floating Rate/Fixed Rate Note will be payable
will be reset as of each Interest Reset Date; provided, however, that
(y) the interest rate in effect for the period, if any, from the date
of issue to the Initial Interest Reset Date will be the Initial
Interest Rate and (z) the interest rate in effect for the period
commencing on the Fixed Rate Commencement Date to the Maturity Date
will be the Fixed Interest Rate, if such rate is specified in the
applicable Pricing Supplement or, if no such Fixed Interest Rate is
specified, the interest rate in effect thereon on the date
immediately preceding the Fixed Rate Commencement Date.
(iii) If such Floating Rate Note is designated as an
"Inverse Floating Rate Note," then, except as described below or in
the applicable Pricing Supplement, such Floating Rate Note will bear
interest at the Fixed Interest Rate minus the rate determined by
reference to the applicable Interest Rate Basis or Bases (a) plus or
minus the applicable Spread, if any, and/or (b) multiplied by the
applicable Spread Multiplier, if any; provided, however, that, unless
otherwise specified in the applicable Pricing Supplement, the
interest rate thereon will not be less than zero. Commencing on the
Initial Interest Reset Date, the rate at which interest on such
Inverse Floating Rate will be payable will be reset as of each
Interest Reset Date; provided, however, that the interest rate in
effect for the period, if any, from the date of issue to the Initial
Interest Reset Date will be the Initial Interest Rate.
The "Spread" is the number of basis points to be added to or
subtracted from the related Interest Rate Basis or Bases applicable to such
Floating Rate Note. The "Spread Multiplier" is the percentage of the related
Interest Rate Basis or Bases applicable to such Floating Rate Note by which
such Interest Rate Basis or Bases will be multiplied to determine the
applicable interest rate on such Floating Rate Note. The "Index Maturity" is
the period to maturity of the instrument or obligation with respect to which
the related Interest Rate Basis or Bases will be calculated.
Unless otherwise specified in the applicable Pricing Supplement, the
interest rate with respect to each Interest Rate Basis will be determined in
accordance with the applicable provisions below. Except as set forth above or
in the applicable Pricing Supplement, the interest rate in effect on each day
will be (i) if such day is an Interest Reset Date, the interest rate
determined as of the Interest Determination Date (as hereinafter defined)
immediately preceding such Interest Reset Date
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or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the
most recent Interest Reset Date.
The applicable Pricing Supplement will specify whether the rate of
interest on the related Floating Rate Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually or on such other specified basis
(each, an "Interest Reset Period") and the dates on which such rate of
interest will be reset (each, an "Interest Reset Date"). Unless otherwise
specified in the applicable Pricing Supplement, the Interest Reset Dates will
be, in the case of Floating Rate Notes which reset: (i) daily, each Business
Day; (ii) weekly, the Wednesday of each week (with the exception of weekly
reset Floating Rate Notes as to which the Treasury Rate is an applicable
Interest Rate Basis, which will reset the Tuesday of each week, except as
described below); (iii) monthly, the third Wednesday of each month (with the
exception of monthly reset Floating Rate Notes as to which the Eleventh
District Cost of Funds Rate is an applicable Interest Rate Basis, which will
reset on the first calendar day of the month; (iv) quarterly, the third
Wednesday of March, June, September and December of each year; (v)
semiannually, the third Wednesday of the two months specified in the
applicable Pricing Supplement; and (vi) annually, the third Wednesday of the
month specified in the applicable Pricing Supplement; provided however, that,
with respect to Floating Rate/Fixed Rate Notes, the rate of interest thereon
will not reset after the applicable Fixed Rate Commencement Date. If any
Interest Reset Date for any Floating Rate Note would otherwise be a day that
is not a Business Day, such Interest Reset Date will be postponed to the next
succeeding Business Day, except that in the case of a Floating Rate Note as to
which LIBOR is an applicable Interest Rate Basis and such Business Day falls
in the next succeeding calendar month, such Interest Reset Date will be the
immediately preceding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be the rate determined by the
Calculation Agent as of the applicable Interest Determination Date and
calculated on or prior to the Calculation Date (as hereinafter defined),
except with respect to LIBOR and the Eleventh District Cost of Funds Rate,
which will be calculated on such Interest Determination Date. The "Interest
Determination Date" with respect to the CD Rate, the CMT Rate, the Commercial
Paper Rate, the Federal Funds Rate and the Prime Rate will be on the second
Business Day immediately preceding the applicable Interest Reset Date; the
"Interest Determination Date" with respect to the Eleventh District Cost of
Funds Rate will be the last working day of the month immediately preceding the
applicable Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as hereinafter
defined); and the "Interest Determination Date" with respect to LIBOR will be
the second London Business Day immediately preceding the applicable Interest
Reset Date. With respect to the Treasury Rate, the "Interest Determination
Date" will be the day in the week in which the applicable Interest Reset Date
falls on which day Treasury Bills (as hereinafter defined) are normally
auctioned (Treasury Bills are normally sold at an auction held on Monday of
each week, unless that day is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that such auction may be held
on the preceding Friday); provided, however, that if an auction is held on the
Friday of the week preceding the applicable Interest Reset Date, the "Interest
Determination Date" will be such preceding Friday; provided, further, that if
the Interest Determination Date would otherwise fall on an Interest Reset
date, then such Interest Reset Date will
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be postponed to the next succeeding Business Day. The "Interest Determination
Date" pertaining to a Floating Rate Note the interest rate of which is
determined by reference to two or more Interest Rate Bases will be the most
recent Business Day which is at least two Business Days prior to the
applicable Interest Reset Date for such Floating Rate Note on which each
Interest Rate Basis is determinable. Each Interest Rate Basis will be
determined as of such date, and the applicable interest rate will take effect
on the applicable Interest Reset Date.
Notwithstanding the foregoing, a Floating Rate Note may also have
either or both of the following: (i) a Maximum Interest Rate, or ceiling,
that may accrue during any Interest Period and (ii) a Minimum Interest Rate,
or floor, that may accrue during any Interest Period. In addition to any
Maximum Interest Rate that may apply to any Floating Rate Note, the interest
rate on Floating Rate Notes will in no event be higher than the maximum rate
permitted by Indiana law, as the same may be modified by United States law of
general application.
Except as provided below or in the applicable Pricing Supplement,
interest will be payable, in the case of Floating Rate Notes which reset, as
the case may be: (i) daily, weekly or monthly, on the third Wednesday of each
month or on the third Wednesday of March, June, September and December of each
year, as specified in the applicable Pricing Supplement; (ii) quarterly, on
the third Wednesday of March, June, September and December of each year; (iii)
semiannually, on the third Wednesday of the two months of each year specified
in the applicable Pricing Supplement; and (iv) annually, on the third
Wednesday of the month of each year specified in the applicable Pricing
Supplement (each, an "Interest Payment Date" with respect to Floating Rate
Notes) and, in each case, on the Maturity Date. If any Interest Payment Date
other than the Maturity Date for any Floating Rate Note would otherwise be a
day that is not a Business Day, such Interest Payment Date will be postponed
to the next succeeding Business Day, except in the case of a Floating Rate
Note as to which LIBOR is an applicable Interest Rate Basis and such Business
Day falls in the next succeeding calendar month, such Interest Payment Date
will be the immediately preceding Business Day. If the Maturity Date of a
Floating Rate Note falls on a day that is not a Business Day, the required
payment of principal, premium, if any, and interest will be made on the next
succeeding Business Day with the same force and effect as if made on the date
such payment was due, and no interest will accrue on such payment for the
period from and after the Maturity Date to the date of such payment on the
next succeeding Business Day.
All percentages resulting from any calculation on Floating Rate Notes
will be rounded to the nearest one hundred- thousandth of a percentage point,
with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545%, or .09876545, would be rounded to 9.87655%, or .0987655), and all
dollar amounts used in or resulting from such calculation on Floating Rate
Notes will be rounded to the nearest cent (with one-half cent rounded upward).
With respect to each Floating Rate Note, accrued interest is
calculated by multiplying its principal amount by an accrued interest factor.
Such accrued interest factor is computed by adding the interest factor
calculated for each day in the applicable Interest Period. Unless otherwise
specified in the applicable Pricing Supplement, the interest factor for each
such day will be computed by dividing the interest rate applicable to such day
by 360, in the case of Floating Rate
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Notes for which an applicable Interest Rate Basis is the CD Rate, the
Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal
Funds Rate, LIBOR or the Prime Rate, or by the actual number of days in the
year in the case of Floating Rate Notes for which an applicable Interest Rate
Basis is the CMT Rate or the Treasury Rate. Unless otherwise specified in the
applicable Pricing Supplement, the interest factor for Floating Rate Notes for
which the interest rate is calculated with reference to two or more Interest
Rate Bases will be calculated in each period in the same manner as if only the
applicable Interest Rate Basis specified in the applicable Pricing Supplement
applied.
Unless otherwise specified in the applicable Pricing Supplement, Bank
One, NA will be the "Calculation Agent." Upon request of the Holder of any
Floating Rate Note, the Calculation Agent will disclose the interest rate then
in effect and, if determined, the interest rate that will become effective as
a result of a determination made for the next succeeding Interest Reset Date
with respect to such Floating Rate Note. Unless otherwise specified in the
applicable Pricing Supplement, the "Calculation Date," if applicable,
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is
not a Business Day, the next succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or the Maturity
Date, as the case may be.
Unless otherwise specified in the applicable Pricing Supplement, the
Calculation Agent will determine each Interest Rate Basis in accordance with
the following provisions.
CD Rate. Unless otherwise specified in the applicable Pricing
Supplement, "CD Rate" means, with respect to any Interest Determination Date
relating to a Floating Rate Note for which the interest rate is determined
with reference to the CD Rate (a "CD Rate Interest Determination Date"), the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified in the applicable Pricing Supplement as
published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates" or any successor
publication ("H.15(519)") under the heading "CDS (Secondary Market)," or, if
not published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on such CD Rate Interest Determination Date for negotiable
United States dollar certificates of deposit of the Index Maturity specified
in the applicable Pricing Supplement as published by the Federal Reserve Bank
of New York in its daily statistical release "Composite 3:30 P.M. Quotations
for United States Government Securities" or any successor publication
("Composite Quotations") under the heading "Certificates of Deposit." If such
rate is not yet published in either H.15(519) or Composite Quotations by 3:00
P.M., New York City time, on the related Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the secondary market offered rates as
of 10:00 A.M., New York City time, on such CD Rate Interest Determination
Date, of three leading nonbank dealers in negotiable United States dollar
certificates of deposit in The City of New York (which may include the Agent
or its affiliates) selected by the Calculation Agent after consultation with
the Company for negotiable United States dollar certificates of deposit of
major United States money market banks with a remaining maturity closest to
the Index Maturity specified in the applicable Pricing Supplement in
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an amount that is representative for a single transaction in that market at
that time; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the CD Rate
determined as of such CD Rate Interest Determination Date will be the CD Rate
in effect on such CD Rate Interest Determination Date.
CMT Rate. Unless otherwise specified in the applicable Pricing
Supplement, "CMT Rate" means, with respect to any Interest Determination
relating to a Floating Rate Note for which the interest rate is determined
with reference to the CMT Rate (a "CMT Rate Interest Determination Date"), the
rate displayed on the Designated CMT Telerate Page under the caption ". . .
Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . .
. Mondays approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the rate
on such CMT Rate Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the weekly or monthly average, as specified in the
applicable Pricing Supplement, for the week or the month, as applicable, ended
immediately preceding the week or the month, as applicable, in which the
related CMT Rate Interest Determination Date occurs. If such rate is no
longer displayed on the relevant page or is not displayed by 3:00 P.M., New
York City time, on the related Calculation Date, then the CMT Rate on such CMT
Rate Interest Determination Date will be such treasury constant maturity rate
for the Designated CMT Maturity Index as published in the relevant H.15(519).
If such rate is no longer published or is not published by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index (or other United States Treasury rate for
the Designated CMT Maturity Index) for the CMT Rate Interest Determination
Date with respect to such Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the related Calculation Date, then the
CMT Rate on the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date
reported, according to their written records, by three leading primary United
States government securities dealers in The City of New York (which may
include the Agent or its affiliates) (each, a "Reference Dealer") selected by
the Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent after consultation with the Company and eliminating the
highest quotation (or, in the event of quotation equality, one of the highest)
and the lowest quotation (or, in the event of quotation equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity
of approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date of three Reference Dealers in The City of New York
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(from five such Reference Dealers selected by the Calculation Agent after
consultation with the Company and eliminating the highest quotation (or, in
the event of quotation equality, one of the highest) and the lowest quotation
(or, in the event of quotation equality, one of the lowest)), for Treasury
Notes with an original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term to maturity
closest to the Designated CMT Maturity Index and in an amount of at least $100
million. If three or four (and not five) of such Reference Dealers are
quoting as described above, then the CMT Rate will be based on the arithmetic
mean of the offer prices obtained and neither the highest nor the lowest of
such quotes will be eliminated; provided, however, that if fewer than three
Reference Dealers so selected by the Calculation Agent are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain quotations for the Treasury Note with the shorter remaining term to
maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified in the
applicable Pricing Supplement (or any other page as may replace such page on
that service for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is specified in the
applicable Pricing Supplement, the Designated CMT Telerate Page will be 7052
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated or, if no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index will be 2 years.
Commercial Paper Rate. Unless otherwise specified in the applicable
Pricing Supplement, "Commercial Paper Rate" means, with respect to any
Interest Determination Date relating to a Floating Rate Note for which the
interest rate is determined with reference to the Commercial Paper Rate (a
"Commercial Paper Rate Interest Determination Date"), the Money Market Yield
(as hereinafter defined) on such date of the rate for commercial paper having
the Index Maturity specified in the applicable Pricing Supplement as published
in H.15(519) under the heading "Commercial Paper." In the event that such
rate is not published by 3:00 P.M., New York City time, on the applicable
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be the Money Market Yield of the rate for
commercial paper having the Index Maturity specified in the applicable Pricing
Supplement as published in Composite Quotations under the heading "Commercial
Paper" (with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If such
rate is not yet published in either H.15(519) or Composite Quotations by 3:00
P.M., New York City time, on the related Calculation Date, then the Commercial
Paper Rate on such Commercial Paper Rate Interest Determination Date will be
calculated by the Calculation Agent and will be the Money Market Yield of the
arithmetic mean of the offered rates at approximately
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11:00 A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper in The City of
New York (which may include the Agent or its affiliates) selected by the
Calculation Agent, after consultation with the Company, for commercial paper
having the Index Maturity specified in the applicable Pricing Supplement
placed for an industrial issuer whose bond rating is "AA", or the equivalent,
from a nationally recognized statistical rating organization; provided,
however, that if the dealers so selected by the Calculation Agent after
consultation with the Company are not quoting as mentioned in this sentence,
the Commercial Paper Rate determined as of such Commercial Paper Rate Interest
Determination Date will be the Commercial Paper Rate in effect on such
Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the applicable Interest Period for which interest is
being calculated.
Eleventh District Cost of Funds Rate. Unless otherwise specified in
the applicable Pricing Supplement, "Eleventh District Cost of Funds Rate"
means, with respect to any Interest Determination Date relating to a Floating
Rate Note for which the interest rate is determined with reference to the
Eleventh District Cost of Funds Rate (an "Eleventh District Cost of Funds Rate
Interest Determination Date"), the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls,
as set forth under the caption "11th District" on Telerate Page 7058 as of
11:00 A.M., San Francisco time, on such Eleventh District Cost of Funds Rate
Interest Determination Date. If such rate does not appear on Telerate Page
7058 on such Eleventh District Cost of Funds Rate Interest Determination Date,
then the Eleventh District Cost of Funds Rate on such Eleventh District Cost
of Funds Rate Interest Determination Date will be the monthly weighted average
cost of funds paid by member institutions of the Eleventh Federal Home Loan
Bank District that was most recently announced (the "Index") by the FHLB of
San Francisco as such cost of funds for the calendar month immediately
preceding such Eleventh District Cost of Funds Rate Interest Determination
Date. If the FHLB of San Francisco fails to announce the Index on or prior to
such Eleventh District Cost of Funds Rate Interest Determination Date for the
calendar month immediately preceding such Eleventh District Cost of Funds Rate
Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Determination Date.
Federal Funds Rate. Unless otherwise specified in the applicable
Pricing Supplement, "Federal Funds Rate" means, with respect to any Interest
Determination Date relating to a Floating
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Rate Note for which the interest rate is determined with reference to the
Federal Funds Rate (a "Federal Funds Rate Interest Determination Date"), the
rate on such date for United States dollar federal funds as published in
H.15(519) under the heading "Federal Funds (Effective)" or, if not published
by 3:00 P.M., New York City time, on the related Calculation Date, the rate on
such Federal Funds Rate Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If such rate is
not published in either H.15(519) or Composite Quotations by 3:00 P.M., New
York City time, on the related Calculation Date, then the Federal Funds Rate
on such Federal Funds Rate Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the rates for the
last transaction in overnight United States federal funds arranged by three
leading brokers of federal funds transactions in The City of New York (which
may include the Agent or its affiliates) selected by the Calculation Agent
after consultation with the Company prior to 9:00 A.M., New York City time, on
such Federal Funds Rate Interest Determination Date; provided, however, that
if the brokers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate determined as of such
Federal Funds Rate Interest Determination Date will be the Federal Funds Rate
in effect on such Federal Funds Rate Interest Determination Date.
LIBOR. Unless otherwise specified in the applicable Pricing
Supplement, "LIBOR" means the rate determined in accordance with the following
provisions:
(i) With respect to any Interest Determination Date
relating to a Floating Rate Note for which the interest rate is
determined with reference to LIBOR (a "LIBOR Interest Determination
Date"), LIBOR will be either: (a) if "LIBOR Reuters" is specified in
the applicable Pricing Supplement, the arithmetic mean of the offered
rates for deposits in United States dollars having the Index Maturity
specified in such Pricing Supplement, commencing on the applicable
Interest Reset Date, that appear on the Designated LIBOR Page as of
11:00 A.M., London time, on such LIBOR Interest Determination Date,
or (b) if "LIBOR Telerate" is specified in the applicable Pricing
Supplement or if neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified in the applicable Pricing Supplement as the method of
calculating LIBOR, the rate for deposits in United States dollars
having the Index Maturity specified in such Pricing Supplement,
commencing on the applicable Interest Reset Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date. If fewer than two such offered rates so
appear, or if no such rate so appears, as applicable, LIBOR on such
LIBOR Interest Determination Date will be determined in accordance
with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date
on which fewer than two offered rates appear, or no rate appears, as
the case may be, on the Designated LIBOR Page as specified in clause
(i) above, the Calculation Agent will request the principal London
offices of each of four major reference banks in the London interbank
market, as selected by the Calculation Agent after consultation with
the Company, to provide the Calculation Agent with its offered
quotation for deposits in United States dollars for the period of the
Index Maturity specified in the applicable Pricing Supplement,
commencing on the applicable Interest Reset Date, to prime banks in
the London interbank market at
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approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative
for a single transaction in United States dollars in such market at
such time. If at least two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in The City of New York, on such LIBOR
Interest Determination Date by three major money center banks in The
City of New York selected by the Calculation Agent after consultation
with the Company for loans in United States dollars to leading
European banks, having the Index Maturity specified in the applicable
Pricing Supplement and in a principal amount that is representative
for a single transaction in United States dollars in such market at
such time; provided, however, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this sentence,
LIBOR determined as of such LIBOR Interest Determination Date will be
LIBOR in effect on such LIBOR Interest Determination Date.
"Designated LIBOR Page" means (i) if "LIBOR Reuters" is specified in
the applicable Pricing Supplement, the display on the Reuters Monitor Money
Rates Service (or any successor service) on the page designated as page "LIBO"
(or such other page as may replace such page on such service for the purpose
of displaying the London interbank offered rates of major banks for United
States dollars) or (ii) if "LIBOR Telerate" is specified in the applicable
Pricing Supplement or neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified in the applicable Pricing Supplement, the display on the Dow Jones
Telerate Service (or any successor service) on the page designated as page
"3750" (or such other page as may replace such page on such service for the
purpose of displaying the London interbank offered rates of major banks for
United States dollars).
Prime Rate. Unless otherwise specified in the applicable Pricing
Supplement, "Prime Rate" means, with respect to any Interest Determination
Date relating to a Floating Rate Note for which the interest rate is
determined with reference to the Prime Rate (a "Prime Rate Interest
Determination Date"), the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan." If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate will be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page (as
hereinafter defined) as such bank's prime rate or base lending rate as in
effect for such Prime Rate Interest Determination Date. If fewer than four
such rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate
Interest Determination Date, then the Prime Rate will be the arithmetic mean
of the prime rates or base lending rates quoted on the basis of the actual
number of days in the year divided by a 360-day year as of the close of
business on such Prime Rate Interest Determination Date by four major money
center banks in The City of New York selected by the Calculation Agent after
consultation with the Company. If fewer than four such quotations are so
provided, then the Prime Rate will be the arithmetic mean of four prime rates
quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate Interest
Determination Date as furnished in The City of New York by the major money
center banks, if any, that have provided such quotations and by a reasonable
number of substitute banks or trust companies necessary in order to obtain
four such prime rate quotations, provided such substitute
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banks or trust companies are organized and doing business under the laws of
the United States, or any State thereof, each having total equity capital of
at least $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent after
consultation with the Company to provide such rate or rates; provided,
however, that if the banks or trust companies so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Prime Rate determined
as of such Prime Rate Interest Determination Date will be the Prime Rate in
effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display on the Reuters
Monitor Money Rates Service (or any successor service) on the "USPRIME1" page
(or such other page as may replace the USPRIME1 page on such service) for the
purpose of displaying prime rates or base lending rates of major United States
banks.
Treasury Rate. Unless otherwise specified in the applicable Pricing
Supplement, "Treasury Rate" means, with respect to any Interest Determination
Date relating to a Floating Rate Note for which the interest rate is
determined by reference to the Treasury Rate (a "Treasury Rate Interest
Determination Date"), the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified in the
applicable Pricing Supplement, as such rate is published in H.15(519) under
the heading "Treasury Bills-auction average (investment)" or, if not published
by 3:00 P.M., New York City time, on the related Calculation Date, the auction
average rate of such Treasury Bills (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills
having the Index Maturity specified in the applicable Pricing Supplement are
not reported as provided above by 3:00 P.M., New York City time, on the
related Calculation Date, or if no such Auction is held, then the Treasury
Rate will be calculated by the Calculation Agent and will be a yield to
maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of
the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers (which may include the
Agent or its affiliates) selected by the Calculation Agent after consultation
with the Company, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified in the applicable Pricing Supplement;
provided, however, that if the dealers so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the Treasury Rate determined as
of such Treasury Rate Interest Determination Date will be the Treasury Rate in
effect on such Treasury Rate Interest Determination Date.
OTHER/ADDITIONAL PROVISIONS; ADDENDUM
Any provisions with respect to the Notes, including the specification
and determination of one or more Interest Rate Bases, the calculation of the
interest rate applicable to a Floating Rate Note, the Interest Payment Dates,
the Stated Maturity Date, any redemption or repayment provisions or any other
term relating thereto, may be modified and/or supplemented as specified under
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"Other/Additional Provisions" on the face thereof or in an Addendum relating
thereto, if so specified on the face thereof and described in the applicable
Pricing Supplement.
DISCOUNT NOTES
The Company may offer Notes from time to time that have an Issue
Price (as specified in the applicable Pricing Supplement) that is less than
100% of the principal amount thereof (i.e., par) by more than a percentage
equal to the product of 0.25% and the number of full years to the Stated
Maturity Date ("Discount Notes"). Discount Notes may not bear any interest
currently or may bear interest at a rate that is below market rates at the
time of issuance. The difference between the Issue Price of a Discount Note
and par is referred to herein as the "Discount." In the event of redemption,
repayment or acceleration of maturity of a Discount Note, the amount payable
to the Holder of such Discount Note will be equal to the sum of (i) the Issue
Price (increased by any accruals of Discount) and, in the event of any
redemption of such Discount Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (ii) any unpaid interest accrued thereon to the
date of such redemption, repayment or acceleration of maturity, as the case
may be.
Unless otherwise specified in the applicable Pricing Supplement, for
purposes of determining the amount of Discount that has accrued as of any date
on which a redemption, repayment or acceleration of maturity occurs for a
Discount Note, such Discount will be accrued using a constant yield method.
The constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as
hereinafter defined), corresponds to the shortest period between Interest
Payment Dates for the applicable Discount Note (with ratable accruals within a
compounding period), a coupon rate equal to the initial interest rate
applicable to such Discount Note and an assumption that the maturity of such
Discount Note will not be accelerated. If the period from the date of issue
to the initial Interest Payment Date for a Discount Note (the "Initial Accrual
Period") is shorter than the compounding period for such Discount Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Accrual Period is longer than the compounding period,
then such period will be divided into a regular compounding period and a short
period with the short period being treated as provided in the preceding
sentence. The accrual of the applicable Discount may differ from the accrual
of original issue discount for purposes of the Internal Revenue Code of 1986,
as amended (the "Code"), certain Discount Notes may not be treated as having
original issue discount within the meaning of the Code, and Notes other than
Discount Notes may be treated as issued with original issued discount for
federal income tax purposes. See "CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSIDERATIONS."
INDEXED NOTES
The Company may from time to time offer Notes with the amount of
principal, premium and/or interest payable in respect thereof to be determined
with reference to the price or prices of specified commodities or stocks or to
other items ("Indexed Notes"), in each case as specified in the applicable
Pricing Supplement. In certain cases, Holders of Indexed Notes may receive a
principal
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payment on the Maturity Date that is greater than or less than the principal
amount of such Indexed Notes depending upon the relative value on the Maturity
Date of the specified indexed item. Information as to the method for
determining the amount of principal, premium, if any, and/or interest, if any,
payable in respect of Indexed Notes, certain historical information with
respect to the specified indexed item and any material tax considerations
associated with an investment in Indexed Notes will be specified in the
applicable Pricing Supplement. See also "RISK FACTORS."
AMORTIZING NOTES
The Company may from time to time offer Notes with the amount of
principal thereof and interest thereon payable in installments over the term
of such Notes ("Amortizing Notes"). Unless otherwise specified in the
applicable Pricing Supplement, interest on each Amortizing Note will be
computed on the basis of a 360-day year of twelve 30-day months. Payments with
respect to Amortizing Notes will be applied first to interest due and payable
thereon and then to the reduction of the unpaid principal amount thereof.
Further information concerning additional terms and provisions of Amortizing
Notes will be specified in the applicable Pricing Supplement, including a
table setting forth repayment information for such Amortizing Notes.
CERTAIN COVENANTS
Reference is made to the section entitled "DESCRIPTION OF DEBT
SECURITIES" in the accompanying Prospectus for a description of certain
covenants applicable to the Notes. Compliance with such covenants with
respect to the Notes generally may not be waived by the Board of Directors of
the Company or by the Trustee unless the Holders of at least a majority in
principal amount of all outstanding Notes consent to such waiver; provided,
however, that the satisfaction and discharge and covenant defeasance
provisions of the Indenture described under the captions "DESCRIPTION OF DEBT
SECURITIES--Satisfaction and Discharge" and "DESCRIPTION OF DEBT
SECURITIES--Defeasance of Certain Obligations" in the accompanying Prospectus
will apply to the Notes.
BOOK-ENTRY NOTES
The Company has established a depository arrangement with The
Depository Trust Company with respect to the Book-Entry Notes, the terms of
which are summarized below. Any additional or differing terms of the
depository arrangement with respect to the Book-Entry Notes will be described
in the applicable Pricing Supplement.
Upon issuance, all Book-Entry Notes bearing interest (if any) at the
same rate or pursuant to the same formula and having the same date of issue,
Interest Payment Dates (if any), Stated Maturity Date, redemption provisions
(if any), repayment provisions (if any) and other terms will be represented by
a single Global Security. Each Global Security representing Book-Entry Notes
will be deposited with, or on behalf of, the Depository and will be registered
in the name of the Depository or a nominee of the Depository. No Global
Security may be transferred except as a whole by a nominee of the Depository
to the Depository or to another nominee of the Depository,
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or by the Depository or such nominee to a successor of the Depository or a
nominee of such successor.
So long as the Depository or its nominee is the registered owner of a
Global Security, the Depository or its nominee, as the case may be, will be
the sole Holder of the Book-Entry Notes represented thereby for all purposes
under the Indenture. Except as otherwise provided below, the Beneficial Owners
(as defined below) of the Global Security or Securities representing
Book-Entry Notes will not be entitled to receive physical delivery of
Certificated Notes and will not be considered the Holders thereof for any
purpose under the Indenture, and no Global Security representing Book-Entry
Notes will be exchangeable or transferable. Accordingly, each Beneficial
Owner must rely on the procedures of the Depository and, if such Beneficial
Owner is not a Participant (as defined below), on the procedures of the
Participant through which such Beneficial Owner owns its interest in order to
exercise any rights of a Holder under such Global Security or the Indenture.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in certificated form. The above
restrictions and laws may impair the ability to transfer beneficial interests
in a Global Security representing Book-Entry Notes.
Unless otherwise specified in the applicable Pricing Supplement, each
Global Security representing Book-Entry Notes will be exchangeable for
Certificated Notes of like tenor and terms and of differing authorized
denominations in a like aggregate principal amount, only if (i) the Depository
notifies the Company that it is unwilling or unable to continue as Depository
for the Global Securities or the Company becomes aware that the Depository has
ceased to be a clearing agency registered under the Exchange Act and, in any
such case, the Company will not have appointed a successor to the Depository
within 90 days thereafter, (ii) the Company, in its sole discretion,
determines that the Global Securities will be exchangeable for Certificated
Notes, or (iii) an Event of Default under the Indenture will have occurred and
be continuing with respect to the Notes. Upon any such exchange, the
Certificated Notes will be registered in the names of the Beneficial Owners of
the Global Security or Securities representing Book-Entry Notes, which names
will be provided by the Depository's relevant Participants (as defined by the
Depository) to the Trustee.
The following is based on information furnished by the Depository:
The Depository will act as securities depository for the
Book-Entry Notes. The Book-Entry Notes will be issued as fully
registered securities registered in the name of Cede & Co. (the
Depository's partnership nominee). One fully registered Global
Security will be issued for each issue of Book-Entry Notes, each in
the aggregate principal amount of such issue, and will be deposited
with the Depository.
The Depository is a limited-purpose trust company organized
under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code and a "clearing agency" registered pursuant
to the provisions of Section 17A of the Exchange Act. The Depository
holds securities that its
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participants ("Participants") deposit with the Depository. The
Depository also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book- entry changes in
Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants of the
Depository ("Direct Participants") include securities brokers and
dealers (including the Agent), banks, trust companies, clearing
corporations and certain other organizations. The Depository is owned
by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the Depository's
system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to the
Depository and its Participants are on file with the Securities and
Exchange Commission.
Purchases of Book-Entry Notes under the Depository's system
must be made by or through Direct Participants, which will receive a
credit for such Book-Entry Notes on the Depository's records. The
ownership interest of each actual purchaser of each Book-Entry Note
represented by a Global Security ("Beneficial Owner") is in turn to
be recorded on the records of Direct Participants and Indirect
Participants. Beneficial Owners will not receive written
confirmation from the Depository of their purchase, but Beneficial
Owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their
holdings, from the Direct Participants or Indirect Participants
through which such Beneficial Owner entered into the transaction.
Transfers of ownership interests in a Global Security representing
Book-Entry Notes are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial
Owners of a Global Security representing Book-Entry Notes will not
receive Certificated Notes representing their ownership interests
therein, except in the event that use of the book-entry system for
such Book-Entry Notes is discontinued.
To facilitate subsequent transfers, all Global Securities
representing Book-Entry Notes which are deposited with, or on behalf
of, the Depository are registered in the name of the Depository's
nominee, Cede & Co. The deposit of Global Securities with, or on
behalf of, the Depository and their registration in the name of Cede
& Co. effect no change in beneficial ownership. The Depository has
no knowledge of the actual Beneficial Owners of the Global Securities
representing the Book-Entry Notes. The Depository's records reflect
only the identity of the Direct Participants to whose accounts such
Book-Entry Notes the Notes are credited, which may or may not be the
Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by the
Depository to Direct Participants, by Direct Participants to Indirect
Participants and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
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Neither the Depository nor Cede & Co. will consent or vote
with respect to the Global Securities representing the Book-Entry
Notes. Under its usual procedures, the Depository mails an Omnibus
Proxy to the Company as soon as possible after the applicable record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting
right to those Direct Participants to whose accounts the Book-Entry
Notes are credited on the applicable record date (identified in a
listing attached to the Omnibus Proxy).
Principal, premium, if any, and/or interest, if any, payments
on the Global Securities representing the Book-Entry Notes will be
made in immediately available funds to the Depository. The
Depository's practice is to credit Direct Participants' accounts on
the applicable payment date in accordance with their respective
holdings shown on the Depository's records unless the Depository has
reason to believe that it will not receive payment on such date.
Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or
registered in "street name", and will be the responsibility of such
Participant and not of the Depository, the Trustee or the Company,
subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of principal, premium, if any,
and/or interest, if any, to the Depository is the responsibility of
the Company and the Trustee; disbursement of such payments to Direct
Participants will be the responsibility of the Depository; and
disbursement of such payments to the Beneficial Owners will be the
responsibility of Direct Participants and Indirect Participants.
If applicable, redemption notices will be sent to Cede & Co.
If less than all of the Book-Entry Notes of like tenor and terms are
being redeemed, the Depository's practice is to determine, by lot,
the amount of the interest of each Direct Participant in such issue
to be redeemed.
A Beneficial Owner will give notice of any election to have
its Book-Entry Notes repaid by the Company, through its Participant,
to the Trustee, and will effect delivery of such Book-Entry Notes by
causing the Direct Participant to transfer the Participant's interest
in the Global Security or Securities representing such Book-Entry
Notes, on the Depository's records, to the Trustee. The requirement
for physical delivery of Book-Entry Notes in connection with a demand
for repayment will be deemed satisfied when the ownership rights in
the Global Security or Securities representing such Book-Entry Notes
are transferred by Direct Participants on the Depository's records.
The Depository may discontinue providing its services as
securities depository with respect to the Book-Entry Notes at any
time by giving reasonable notice to the Company or the Trustee.
Under such circumstances, in the event that a successor securities
depository is not obtained, Certificated Notes are required to be
printed and delivered.
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The Company may decide to discontinue use of the system of
book-entry transfers through the Depository (or a successor
securities depository). In that event, Certificated Notes will be
printed and delivered.
The information in this section concerning the Depository and the
Depository's system has been obtained from sources that the Company believes
to be reliable, but the Company takes no responsibility for the accuracy
thereof.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary of certain United States Federal income tax
consequences of the purchase, ownership and disposition of the Notes is based
upon Federal laws, regulations, rulings and decisions now in effect, all of
which are subject to change (including changes in effective dates) or possible
differing interpretations. It deals only with Notes held as capital assets
and does not purport to deal with persons in special tax situations, such as
financial institutions, insurance companies, regulated investment companies,
dealers in securities or currencies, persons holding Notes as a hedge against
currency risks or as a position in a "straddle" for tax purposes, or persons
whose functional currency is not the United States dollar. It also does not
deal with holders other than original purchasers (except where otherwise
specifically noted). Persons considering the purchase of the Notes should
consult their own tax advisors concerning the application of United States
Federal income tax laws to their particular situations as well as any
consequences of the purchase, ownership and disposition of the Notes arising
under the laws of any other taxing jurisdiction.
As used herein, the term "U.S. Holder" means a beneficial owner of a
Note that is for United States Federal income tax purposes (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, (iii) an estate or trust the income of which is
subject to United States Federal income taxation regardless of its source or
(iv) any other person whose income or gain in respect of a Note is effectively
connected with the conduct of a United States trade or business. As used
herein, the term "non-U.S. Holder" means a beneficial owner of a Note that is
not a U.S. Holder.
U.S. HOLDERS
Payments of Interest
Payments of interest on a Note generally will be taxable to a U.S.
Holder as ordinary interest income at the time such payments are accrued or
are received (in accordance with the U.S. Holder's regular method of tax
accounting).
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Original Issue Discount
The following summary is a general discussion of the United States
Federal income tax consequences to U.S. Holders of the purchase, ownership and
disposition of Notes issued with original issue discount ("Original Issue
Discount Notes"). The following summary is based upon final Treasury
regulations (the "OID Regulations") released by the Internal Revenue Service
("IRS") on January 27, 1994, as amended on June 11, 1996, under the original
issue discount provisions of the Code.
For United States Federal income tax purposes, original issue
discount is the excess of the stated redemption price at maturity of a Note
over its issue price, if such excess equals or exceeds a de minimis amount
(generally 1/4 of 1% of the Note's stated redemption price at maturity
multiplied by the number of complete years to its maturity from its issue date
or, in the case of a Note providing for the payment of any amount other than
qualified stated interest (as hereinafter defined) prior to maturity,
multiplied by the weighted average maturity of such Note). The issue price of
each Note in an issue of Notes equals the first price at which a substantial
amount of such Notes has been sold (ignoring sales to bond houses, brokers, or
similar persons or organizations acting in the capacity of underwriters,
placement agents, or wholesalers). The stated redemption price at maturity of
a Note is the sum of all payments provided by the Note other than "qualified
stated interest" payments. The term "qualified stated interest" generally
means stated interest that is unconditionally payable in cash or property
(other than debt instruments of the issuer) at least annually at a single
fixed rate or "qualified floating rate" as discussed below. In addition,
under the OID Regulations, if a Note bears interest for one or more accrual
periods at a rate below the rate applicable for the remaining term of such
Note (e.g., Notes with teaser rates or interest holidays), and if the greater
of either the resulting foregone interest on such Note or any "true" discount
on such Note (i.e., the excess of the Note's stated principal amount over its
issue price) equals or exceeds a specified de minimis amount, then the stated
interest payments on the Note would not be treated as qualified stated
interest payments.
Payments of qualified stated interest on a Note are taxable to a U.S.
Holder as ordinary interest income at the time such payments are accrued or
are received (in accordance with the U.S. Holder's regular method of tax
accounting). A U.S. Holder of an Original Issue Discount Note must include
original issue discount in income as ordinary interest for United States
Federal income tax purposes as it accrues under a constant yield method in
advance of receipt of the cash payments attributable to such income,
regardless of such U.S. Holder's regular method of tax accounting. In
general, the amount of original issue discount included in income by the
initial U.S. Holder of an Original Issue Discount Note is the sum of the daily
portions of original issue discount with respect to such Original Issue
Discount Note for each day during the taxable year (or portion of the taxable
year) on which such U.S. Holder held such Original Issue Discount Note. The
"daily portion" of original issue discount on any Original Issue Discount Note
is determined by allocating to each day in any accrual period a ratable
portion of the original issue discount allocable to that accrual period. An
"accrual period" may be of any length and the accrual periods may vary in
length over the term of the Original Issue Discount Note, provided that each
accrual period is no longer than one year and each scheduled payment of
principal or interest occurs either on the final day of an accrual period
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or on the first day of an accrual period. The amount of original issue
discount allocable to each accrual period is generally equal to the difference
between (i) the product of the Original Issue Discount Note's adjusted issue
price at the beginning of such accrual period and its yield to maturity
(determined on the basis of compounding at the close of each accrual period
and appropriately adjusted to take into account the length of the particular
accrual period) and (ii) the amount of any qualified stated interest payments
allocable to such accrual period. The "adjusted issue price" of an Original
Issue Discount Note at the beginning of any accrual period is the sum of the
issue price of the Original Issue Discount Note plus the amount of original
issue discount allocable to all prior accrual periods minus the amount of any
prior payments on the Original Issue Discount Note that were not qualified
stated interest payments. Under these rules, U.S. Holders generally will have
to include in income increasingly greater amounts of original issue discount
in successive accrual periods.
A U.S. Holder who purchases an Original Issue Discount Note 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 Note after the purchase date other than payments of qualified
stated interest, will be considered to have purchased the Original Issue
Discount Note at an "acquisition premium." Under the acquisition premium
rules, the amount of original issue discount which such U.S. Holder must
include in its gross income with respect to such Original Issue Discount Note
for any taxable year (or portion thereof in which the U.S. Holder holds the
Original Issue Discount Note) will be reduced (but not below zero) by the
portion of the acquisition premium properly allocable to the period.
Under the OID Regulations, Floating Rate Notes and Indexed Notes
("Variable Notes") are subject to special rules whereby a Variable Note will
qualify as a "variable rate debt instrument" if (a) its issue price does not
exceed the total noncontingent principal amounts due under the Variable Note
by more than a specified de minimis amount and (b) it provides for stated
interest, paid or compounded at least annually, at current values of (i) one
or more qualified floating rates, (ii) a single fixed rate and one or more
qualified floating rates, (iii) a single objective rate, or (iv) a single
fixed rate and a single objective rate that is a qualified inverse floating
rate.
A "qualified floating rate" is any variable rate where variations in
the value of such rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in which the
Variable Note is denominated. Although a multiple of a qualified floating
rate will generally not itself constitute a qualified floating rate, a
variable rate equal to the product of a qualified floating rate and a fixed
multiple that is greater than .65 but not more than 1.35 will constitute a
qualified floating rate. A variable rate equal to the product of a qualified
floating rate and a fixed multiple that is greater than .65 but not more than
1.35, increased or decreased by a fixed rate, will also constitute a qualified
floating rate. In addition, under the OID Regulations, two or more qualified
floating rates that can reasonably be expected to have approximately the same
values throughout the term of the Variable Note (e.g., two or more qualified
floating rates with values within 25 basis points of each other as determined
on the Variable Note's issue date) will be treated as a single qualified
floating rate. Notwithstanding the foregoing, a variable rate that would
otherwise constitute a qualified floating rate but which is subject to one or
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more restrictions such as a maximum numerical limitation (i.e., a cap) or a
minimum numerical limitation (i.e., a floor) may, under certain circumstances,
fail to be treated as a qualified floating rate under the OID Regulations
unless such cap or floor is fixed throughout the term of the Note. An
"objective rate" is a rate that is not itself a qualified floating rate but
which is determined using a single fixed formula and which is based upon
objective financial or economic information. A rate will not qualify as an
objective rate if it is based on information that is within the control of the
issuer (or a related party) or that is unique to the circumstances of the
issuer (or a related party), such as dividends, profits or the value of the
issuer's stock (although a rate does not fail to be an objective rate merely
because it is based on the credit quality of the issuer). Despite the
foregoing, a variable rate of interest on a Variable Note will not constitute
an objective rate if it is reasonably expected that the average value of such
rate during the first half of the Variable Note's term will be either
significantly less than or significantly greater than the average value of the
rate during the final half of the Variable Note's term. A "qualified inverse
floating rate" is any objective rate where such rate is equal to a fixed rate
minus a qualified floating rate, as long as variations in the rate can
reasonably be expected to inversely reflect contemporaneous variations in the
qualified floating rate. The OID Regulations also provide that if a Variable
Note provides for stated interest at a fixed rate for an initial period of one
year or less followed by a variable rate that is either a qualified floating
rate or an objective rate and if the variable rate on the Variable Note's
issue date is intended to approximate the fixed rate (e.g., the value of the
variable rate on the issue date does not differ from the value of the fixed
rate by more than 25 basis points), then the fixed rate and the variable rate
together will constitute either a single qualified floating rate or objective
rate, as the case may be.
If a Variable Note that provides for stated interest at either a
single qualified floating rate or a single objective rate throughout the term
thereof qualifies as a "variable rate debt instrument" under the OID
Regulations and if interest on such Note is unconditionally payable in cash or
property (other than debt instruments of the issuer) at least annually, then
all stated interest on such Note will constitute qualified stated interest and
will be taxed accordingly. Thus, a Variable Note that provides for stated
interest at either a single qualified floating rate or a single objective rate
throughout the term thereof and that qualifies as a "variable rate" debt
instrument under the OID Regulations will generally not be treated as having
been issued with original issue discount unless the Variable Note is issued at
a "true" discount (i.e., at a price below the Note's stated principal amount)
in excess of a de minimis amount as discussed above. The amount of qualified
stated interest and the amount of original issue discount, if any, that
accrues during an accrual period on such Variable Note is determined under the
rules applicable to fixed rate debt instruments by assuming that the variable
rate is a fixed rate equal to (i) in the case of a qualified floating rate or
qualified inverse floating rate, the value as of the issue date, of the
qualified floating rate or qualified inverse floating rate, or (ii) in the
case of an objective rate (other than a qualified inverse floating rate), a
fixed rate that reflects the yield that is reasonably expected for the
Variable Note. The qualified stated interest allocable to an accrual period
is increased (or decreased) if the interest actually paid during an accrual
period exceeds (or is less than) the interest assumed to be paid during the
accrual period pursuant to the foregoing rules.
In general, any other Variable Note that qualifies as a "variable
rate debt instrument" will be converted into an "equivalent" fixed rate debt
instrument for purposes of determining the amount
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and accrual of original issue discount and qualified stated interest on the
Variable Note. The OID Regulations generally require that such a Variable
Note be converted into an "equivalent" fixed rate debt instrument by
substituting any qualified floating rate or qualified inverse floating rate
provided for under the terms of the Variable Note with a fixed rate equal to
the value of the qualified floating rate or qualified inverse floating rate,
as the case may be, as of the Variable Note's issue date. Any objective rate
(other than a qualified inverse floating rate) provided for under the terms of
the Variable Note is converted into a fixed rate that reflects the yield that
is reasonably expected for the Variable Note. In the case of a Variable Note
that qualifies as a "variable rate debt instrument" and provides for stated
interest at a fixed rate in addition to either one or more qualified floating
rates or a qualified inverse floating rate, the fixed rate is initially
converted into a qualified floating rate (or a qualified inverse floating
rate, if the Variable Note provides for a qualified inverse floating rate).
Under such circumstances, the qualified floating rate or qualified inverse
floating rate that replaces the fixed rate must be such that the fair market
value of the Variable Note as of the Variable Note's issue date is
approximately the same as the fair market value of an otherwise identical debt
instrument that provides for either the qualified floating rate or qualified
inverse floating rate rather than the fixed rate. Subsequent to converting
the fixed rate into either a qualified floating rate or a qualified inverse
floating rate, the Variable Note is then converted into an "equivalent" fixed
rate debt instrument in the manner described above.
Once the Variable Note is converted into an "equivalent" fixed rate
debt instrument pursuant to the foregoing rules, the amount of original issue
discount and qualified stated interest, if any, are determined for the
"equivalent" fixed rate debt instrument by applying the general original issue
discount rules to the "equivalent" fixed rate debt instrument and a U.S.
Holder of the Variable Note will account for such original issue discount and
qualified stated interest as if the U.S. Holder held the "equivalent" fixed
rate debt instrument. For each accrual period appropriate adjustments will be
made to the amount of qualified interest or original issue discount assumed to
have been accrued or paid with respect to the "equivalent" fixed rate debt
instrument in the event that such amounts differ from the actual amount of
interest accrued or paid on the Variable Note during the accrual period.
If a Variable Note does not qualify as a "variable rate debt
instrument" under the OID Regulations, then the Variable Note would be treated
as a contingent payment debt obligation. U.S. Holders should be aware that on
June 11, 1996 the Treasury Department issued final regulations (the "CPDI
Regulations") concerning the proper United States Federal income tax treatment
of contingent payment debt instruments. Certain of these regulations were
subsequently amended on December 31, 1996. In general, the CPDI Regulations
cause the timing and character of income, gain or loss reported on a
contingent payment debt instrument to substantially differ from the timing and
character of income, gain or loss reported on a contingent payment debt
instrument under general principles of prior United States Federal income tax
law. Specifically, the CPDI Regulations generally require a U.S. Holder of
such an instrument to include contingent and noncontingent interest payments
in income as such interest accrues based upon a projected payment schedule.
Moreover, in general, under the CPDI Regulations, any gain recognized by a
U.S. Holder on the sale, exchange, or retirement of a contingent payment debt
instrument will be treated as ordinary income and all or a portion of any loss
realized could be treated as ordinary loss as opposed to
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capital loss (depending upon the circumstances). The proper United States
Federal income tax treatment of Variable Notes that are treated as contingent
payment debt obligations will be more fully described in the applicable
Pricing Supplement. Furthermore, any other special United States Federal
income tax considerations, not otherwise discussed herein, which are
applicable to any particular issue of Notes will be discussed in the
applicable Pricing Supplement.
Certain of the Notes (i) may be redeemable at the option of the
Company prior to their stated maturity (a "call option") and/or (ii) may be
repayable at the option of the holder prior to their stated maturity (a "put
option"). Notes containing such features may be subject to rules that differ
from the general rules discussed above. Investors intending to purchase Notes
with such features should consult their own tax advisors, since the original
issue discount consequences will depend, in part, on the particular terms and
features of the purchased Notes.
U.S. Holders may generally, upon election, include in income all
interest (including stated interest, acquisition discount, original issue
discount, de minimis original issue discount, market discount, de minimis
market discount, and unstated interest, as adjusted by any amortizable bond
premium or acquisition premium) that accrues on a debt instrument by using the
constant yield method applicable to original issue discount, subject to
certain limitations and exceptions.
The OID Regulations contain certain special rules that generally
allow any reasonable method to be used in determining the amount of original
issue discount allocable to a short initial accrual period (if all other
accrual periods are of equal length) and require that the amount of original
issue discount allocable to the final accrual period equal the excess of the
amount payable at the maturity of the Original Issue Discount Note (other than
any payment of qualified stated interest) over the Original Issue Discount
Note's adjusted issue price as of the beginning of such final accrual period.
In addition, if an interval between payments of qualified stated interest on
an Original Issue Discount Note contains more than one accrual period, then
the amount of qualified stated interest payable at the end of such interval is
allocated pro rata (on the basis of their relative lengths) between the
accrual periods contained in the interval.
Short-Term Notes
Notes that have a fixed maturity of one year or less ("Short-Term
Notes") will be treated as having been issued with original issue discount
equal to the excess of the stated redemption price at maturity on the
Short-Term Note over the taxpayer's basis in such obligation. In general, an
individual or other cash method U.S. Holder is not required to accrue such
original issue discount unless the U.S. Holder elects to do so. If such an
election is not made, any gain recognized by the U.S. Holder on the sale,
exchange or maturity of the Short-Term Note will be ordinary income to the
extent of the original issue discount accrued on a straight-line basis, or
upon election under the constant yield method (based on daily compounding),
through the date of sale or maturity, and a portion of the deductions
otherwise allowable to the U.S. Holder for interest on borrowings allocable to
the Short-Term Note will be deferred until a corresponding amount of income is
realized. U.S. Holders who report income for United States Federal income tax
purposes under the accrual method, and certain other holders including banks
and dealers in securities, are required to accrue original
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issue discount on a Short-Term Note on a straight-line basis unless an
election is made to accrue the original issue discount under a constant yield
method (based on daily compounding).
Market Discount
If a U.S. Holder purchases a Note, other than an Original Issue
Discount Note, for an amount that is less than its issue price (or, in the
case of a subsequent purchaser, its stated redemption price at maturity) or,
in the case of an Original Issue Discount Note, for an amount that is not less
than its adjusted issue price as of the purchase date, such U.S. Holder will
be treated as having purchased such Note at a "market discount," unless such
market discount is less than a specified de minimis amount.
Under the market discount rules, a U.S. Holder will be required to
treat any partial principal payment (or, in the case of an Original Issue
Discount Note, any payment that does not constitute qualified stated interest)
on, or any gain realized on the sale, exchange, retirement or other
disposition of, a Note as ordinary income to the extent of the lesser of (i)
the amount of such payment or realized gain or (ii) the market discount which
has not previously been included in income and is treated as having accrued on
such Note 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 Note, unless the U.S. Holder elects to accrue market
discount on the basis of semiannual compounding. Once made, with respect to a
Note, such election is irrevocable with respect to that Note.
A U.S. Holder may be required to defer the deduction of a portion of
the interest paid or accrued on any indebtedness incurred or maintained to
purchase or carry a Note with market discount until the maturity of the Note
or certain earlier dispositions, because a current deduction is only allowed
to the extent of the amount of income included in gross income with respect to
a Note plus the amount by which any remaining interest expense exceeds an
allocable portion of market discount. A U.S. Holder may elect to include
market discount in income currently as it accrues (on either a ratable or
semiannual compounding basis), in which case the rules described above
regarding the treatment as ordinary income of gain upon the disposition of the
Note 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 interest for United States Federal
income tax purposes. Such an election will apply to all debt instruments
acquired by the U.S. Holder on or after the first day of the first taxable
year to which such election applies and may be revoked only with the consent
of the IRS.
Premium
If a U.S. Holder purchases a Note for an amount that is greater than
the sum of all amounts payable on the Note after the purchase date other than
payments of qualified stated interest, such U.S. Holder will be considered to
have purchased the Note with "amortizable bond premium" equal in amount to
such excess. A U.S. Holder may elect to amortize such premium using a
constant yield method over the remaining term of the Note and may offset
interest otherwise required to be
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<PAGE>
included in respect of the Note during any taxable year by the amortized
amount of such excess for the taxable year. However, if the Note may be
optionally redeemed after the U.S. Holder acquires it at a price in excess of
its stated redemption price at maturity, special rules would apply which could
result in a deferral of the amortization of some bond premium. Any election
to amortize bond premium applies to all taxable debt instruments then owned
and thereafter acquired by the U.S. Holder on or after the first day of the
first taxable year to which such election applies and may be revoked only with
the consent of the IRS.
Disposition of a Note
Except as discussed above, upon the sale, exchange or retirement of a
Note, a U.S. Holder generally will recognize taxable gain or loss equal to the
difference between the amount realized on the sale, exchange or retirement
(other than amounts representing accrued and unpaid interest) and such U.S.
Holder's adjusted tax basis in the Note. A U.S. Holder's adjusted tax basis
in a Note generally will equal such U.S. Holder's initial investment in the
Note increased by any original issue discount included in income (and accrued
market discount, if any, if the U.S. Holder has included such market discount
in income) and decreased by the amount of any payments, other than qualified
stated interest payments, received and amortizable bond premium taken with
respect to such Note. Such gain or loss generally will be long-term capital
gain or loss if the Note were held for more than one year.
NON-U.S. HOLDERS
A non-U.S. Holder will not be subject to United States Federal income
taxes on payments of principal, premium (if any) or interest (including
original issue discount, if any) on a note, unless such non-U.S. Holder is a
direct or indirect 10% or greater shareholder of the Company, a controlled
foreign corporation related to the Company or a bank receiving interest
described in section 881(c)(3)(A) of the Code. To qualify for the exemption
from taxation, the last United States payor in the chain of payment prior to
the payment to a non-U.S. Holder (the "Withholding Agent") must have received
in the year in which a payment of interest or principal occurs, or in either
of the two preceding calendar years, a statement that (i) is signed by the
beneficial owner of the Note under penalties of perjury, (ii) certifies that
such owner is not a U.S. Holder and (iii) provides the name and address of the
beneficial owner. The statement may be made on an IRS Form W-8 or a
substantially similar form, and the beneficial owner must inform the
Withholding Agent of any change in the information on the statement within 30
days of such change. If a Note is held through a securities clearing
organization or certain other financial institutions, the organization or
institution may provide a signed statement to the Withholding Agent. However,
in such case, the signed statement must be accompanied by a copy of the IRS
Form W-8 or the substitute form provided by the beneficial owner to the
organization or institution. The Treasury Department is considering
implementation of further certification requirements aimed at determining
whether the issuer of a debt obligation is related to holders thereof.
Generally, a non-U.S. Holder will not be subject to Federal income
taxes on any amount which constitutes capital gain upon retirement or
disposition of a Note, provided the gain is not
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effectively connected with the conduct of a trade or business in the United
States by the non-U.S. Holder. Certain other exceptions may be applicable, and
a non-U.S. Holder should consult its tax advisor in this regard.
The Notes will not be included in the estate of a non-U.S. Holder
unless the individual is a direct or indirect 10% or greater shareholder of
the Company or, at the time of such individual's death, payments in respect of
the Notes would have been effectively connected with the conduct by such
individual of a trade or business in the United States.
BACKUP WITHHOLDING
Backup withholding of United States Federal income tax at a rate of
31% may apply to payments made in respect of the Notes to registered owners
who are not "exempt recipients" and who fail to provide certain identifying
information (such as the registered owner's taxpayer identification number) in
the required manner. Generally, individuals are not exempt recipients,
whereas corporations and certain other entities generally are exempt
recipients. Payments made in respect of the Notes to a U.S. Holder must be
reported to the IRS, unless the U.S. Holder is an exempt recipient or
establishes an exemption. Compliance with the identification procedures
described in the preceding section would establish an exemption from backup
withholding for those non-U.S. Holders who are not exempt recipients.
In addition, upon the sale of a Note to (or through) a broker, the
broker must withhold 31% of the entire purchase price, unless either (i) the
broker determines that the seller is a corporation or other exempt recipient
or (ii) the seller provides, in the required manner, certain identifying
information and, in the case of a non-U.S. Holder, certifies that such seller
is a non-U.S. Holder (and certain other conditions are met). Such a sale must
also be reported by the broker to the IRS, unless either (i) the broker
determines that the seller is an exempt recipient or (ii) the seller certifies
its non-U.S. status (and certain other conditions are met). Certification of
the registered owner's non-U.S. status would be made normally on an IRS Form
W-8 under penalties of perjury, although in certain cases it may be possible
to submit other documentary evidence.
Any amounts withheld under the backup withholding rules from a
payment to a beneficial owner would be allowed as a refund or a credit against
such beneficial owner's United States Federal income tax provided the required
information is furnished to the IRS.
PLAN OF DISTRIBUTION
GENERAL
The Notes are being offered on a continuous basis for sale by the
Company to or through NatCity Investments, Inc. (the "Agent") in accordance
with a Distribution Agreement between the Company and the Agent. The Agent
may utilize its reasonable efforts on an agency basis to solicit offers to
purchase the Notes at 100% of the principal amount thereof, unless otherwise
specified in the applicable Pricing Supplement. The Agent may also purchase
Notes, as principal, from the
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<PAGE>
Company from time to time for resale to investors and other purchasers at
varying prices relating to prevailing market prices at the time of resale as
determined by the Agent or, if so specified in the applicable Pricing
Supplement, for resale at a fixed offering price. The Company will pay a
commission to the Agent, ranging from .125% to .750% of the principal amount
of each Note, depending upon its stated maturity, sold through the Agent, as
agent of the Company. Commissions with respect to Notes with stated
maturities in excess of 30 years that are sold through the Agent, as agent of
the Company, will be negotiated between the Company and the Agent at the time
of such sale.
Unless otherwise specified in the applicable Pricing Supplement, any
Note sold to the Agent as principal will be purchased by the Agent at a price
equal to 100% of the principal amount thereof less a percentage of the
principal amount equal to the commission applicable to an agency sale of a
Note of identical maturity. The Agent may sell Notes that it has purchased
from the Company as principal to certain dealers less a concession equal to
all or any portion of the discount received in connection with such purchase.
The Agent may allow, and such dealers may reallow, a discount to certain other
dealers. After the initial offering of Notes, the offering price (in the case
of Notes to be resold on a fixed offering price basis), the concession and the
reallowance may be changed.
The Company has reserved the right to sell the Notes directly on its
own behalf. No commission will be payable on any Notes sold directly by the
Company.
The Company reserves the right to withdraw, cancel or modify the
offer made hereby without notice. The Company will have the sole right to
accept offers to purchase Notes and may reject offers in whole or in part
(whether placed directly with the Company or through the Agent). The Agent
will have the right, in its discretion reasonably exercised, to reject in
whole or in part any offer to purchase Notes received by it on an agency
basis.
Unless otherwise specified in the applicable Pricing Supplement,
payment of the purchase price of the Notes will be required to be made in
immediately available funds in United States dollars in Columbus, Ohio, on the
date of settlement. See "DESCRIPTION OF NOTES--General."
Upon issuance, the Notes will not have an established trading market.
The Notes will not be listed on any securities exchange. The Agent may from
time to time purchase and sell Notes in the secondary market, but the Agent is
not obligated to do so, and there can be no assurance that there will be a
secondary market for the Notes or that there will be liquidity in the
secondary market if one develops. From time to time, the Agent may make a
market in the Notes, but the Agent is not obligated to do so and may
discontinue any market-making activity at any time.
Until the distribution of the Notes is completed, rules of the
Securities and Exchange Commission may limit the ability of the Agent to bid
for and purchase Notes. As an exception to these rules, the Agent is
permitted to engage in certain transactions that stabilize the price of the
Notes. Such transactions may consist of bids or purchases for the purpose of
pegging, fixing or maintaining the price of the Notes.
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If the Agent creates a short position in the Notes in connection with
the offering, (i.e., if the Agent sells more Notes than are set forth on the
cover page of the Prospectus Supplement), the Agent may reduce that short
position by purchasing Notes in the open market.
In general, purchases of a security for the purpose of price
stabilization or to reduce a short position could cause the price of the
security to be higher than it might otherwise be in the absence of such
purchases.
Neither the Company nor the Agent makes any representation or
prediction as to the direction or magnitude of any effect that the
transactions described above may have on the price of the Notes. In addition,
neither the Company nor the Agent makes any representation that the Agent will
engage in such transactions or that such transactions, once commenced, will
not be discontinued without notice.
The Agent may be deemed to be an "underwriter" within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"). The Company
has agreed to indemnify the Agent against, and in certain instances to provide
contribution with respect to, certain liabilities (including liabilities under
the Securities Act). The Company has agreed to reimburse the Agent for
certain other expenses.
The Agent has, from time to time, provided, and may continue to
provide in the future, various investment banking and/or financial advisory
services to the Company and certain of its affiliates, for which certain
customary compensation has been, and will be, received. The Agent also acts
as a market maker for the Company's common stock. National City Bank of
Indiana, an affiliate of the Agent, currently provides the Company and an
Affiliate Bank with unsecured lines of credit in the aggregate amount of $22.5
million.
From time to time, the Company may issue and sell other Debt
Securities described in the accompanying Prospectus, and the amount of Notes
offered hereby is subject to reduction as a result of such sales.
LEGAL MATTERS
The validity of the Notes offered hereby and the description of
Federal income tax matters contained in this Prospectus Supplement will be
passed upon for the Company by Krieg DeVault Alexander & Capehart,
Indianapolis, Indiana. Certain legal matters will be passed upon for the Agent
by Baker & Daniels, Indianapolis, Indiana.
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<PAGE>
$150,000,000
OLD NATIONAL BANCORP
DEBT SECURITIES
---------------
Old National Bancorp (the "Company") may offer from time to time up
to $150,000,000 aggregate principal amount of its debt securities consisting
of debentures, notes and/or other unsecured evidences of indebtedness (the
"Debt Securities"). The Debt Securities will be direct, unsecured obligations
of the Company and will rank equally with all other unsecured and
unsubordinated indebtedness of the Company. See "DESCRIPTION OF DEBT
SECURITIES."
The Debt Securities may be offered as separate series in amounts, at
prices and on terms to be determined at the time of sale. The title,
aggregate principal amount, initial public offering price, denominations,
maturity, interest rate (which may be fixed or floating) or amount and time of
payment of any interest, any terms for redemption at the option of the Company
or repayment at the option of the holder, any terms for sinking fund payments,
any listing on a securities exchange, any exercise provisions and any other
terms in connection with the offering and sale of the Debt Securities in
respect of which this Prospectus is being delivered will be set forth in one
or more supplements to this Prospectus (each, a "Prospectus Supplement" (which
term includes any Pricing Supplement or Supplements)).
The Company may sell the Debt Securities directly, through agents,
underwriters or dealers as designated from time to time or through a
combination of such methods. If any such agents, underwriters or dealers are
involved in the sale of the Debt Securities in respect of which this
Prospectus is being delivered, the names of such agents, underwriters or
dealers and any applicable agent's commission, underwriter's discount or
dealer's purchase price and the net proceeds to the Company from such sale
will be set forth in, or may be calculated on the basis set forth in, the
applicable Prospectus Supplement. See "PLAN OF DISTRIBUTION" for possible
indemnification arrangements for any such agents, underwriters or dealers.
This Prospectus may not be used to consummate sales of the Debt
Securities without delivery of one or more Prospectus Supplements.
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF
ANY BANK OR NON-BANK AFFILIATE OF THE COMPANY AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS JULY 23, 1997
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information filed by the Company may be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices at 500 West Madison Street, Chicago, Illinois 60661 and Seven
World Trade Center, New York, New York 10048. Copies of such materials may be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains a site on the World Wide Web at http://www.sec.gov, which contains
certain reports, proxy and information statements and other information
regarding registrants, including the Company, that file documents
electronically with the Commission.
The Company has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits thereto, referred
to as the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act") with respect to the Debt Securities being
offered by this Prospectus. This Prospectus, which constitutes a part of the
Registration Statement, does not contain all of the information set forth in
the Registration Statement, certain portions of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the Debt Securities, reference is
hereby made to the Registration Statement. Statements contained herein
concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission are not
necessarily complete, and in each instance reference is made to the copy of
such document so filed with the Commission. Each such statement is qualified
in its entirety by such reference. Such exhibits may be inspected without
charge at the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. Copies of the Registration Statement may be
obtained from the Commission upon payment of the prescribed fees.
2
<PAGE>
INCORPORATION BY REFERENCE
The following documents, which have been filed by the Company with
the Commission pursuant to Section 13 of the Exchange Act (File No. 0-10888),
are incorporated by reference into this Prospectus and will be deemed to be a
part hereof:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1996; and
(b) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Debt Securities made hereby
will be deemed to be incorporated by reference into this Prospectus and to be
a part hereof from the date of filing of such document.
Any statement contained herein, in a Prospectus Supplement or in a
document incorporated or deemed to be incorporated by reference herein will be
deemed to be modified or superseded for purposes of the Registration Statement
and this Prospectus to the extent that a statement contained herein, in a
Prospectus Supplement or in any subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS IS DELIVERED, UPON THE
WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS
WHICH ARE INCORPORATED HEREIN BY REFERENCE, OTHER THAN EXHIBITS TO SUCH
DOCUMENTS (UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE
INTO SUCH DOCUMENTS). REQUESTS SHOULD BE DIRECTED TO THE COMPANY, 420 MAIN
STREET, EVANSVILLE, INDIANA 47708, ATTENTION: JEFFREY L. KNIGHT, CORPORATE
SECRETARY AND GENERAL COUNSEL; TELEPHONE (812) 464-1434.
3
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN
OR INCORPORATED BY REFERENCE INTO THIS PROSPECTUS OR ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE THEREUNDER WILL,
UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF. THIS
PROSPECTUS AND ANY RELATED PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY
IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION.
THE COMPANY
The Company is a multi-bank holding company that, at March 31, 1997,
operated 119 banking offices in Indiana, Illinois and Kentucky through its
bank subsidiaries (the "Affiliate Banks"). At March 31, 1997, the Company had
total consolidated assets of $5.4 billion, total consolidated deposits of $4.2
billion and total consolidated shareholders' equity of $453.4 million and
ranked as the largest publicly owned independent bank holding company
headquartered in the State of Indiana measured by total consolidated assets.
The Company began an acquisition program in 1985 and has acquired 35
financial institutions since that time. The Company also owns nonbank
subsidiaries that provide fiduciary and trust, securities brokerage,
investment, consumer lending, insurance agency and data processing services.
The Company continues to explore opportunities to acquire banks, savings
associations and nonbank companies as permitted by the Bank Holding Company
Act of 1956, as amended (the "BHC Act"). The Company regularly reviews,
analyzes and engages in discussions regarding possible additional
acquisitions. It is not presently known whether, or on what terms, such
discussions will result in further acquisitions. Such acquisitions may be
pending, from time to time, during the time that the Debt Securities are being
offered.
The Company is a legal entity separate and distinct from its
Affiliate Banks and nonbank subsidiaries. Accordingly, the right of the
Company, and thus the right of the Company's creditors and shareholders, to
participate in any distribution of the assets or earnings of any of the
Affiliate Banks or nonbank subsidiaries is necessarily subject to the prior
claims of creditors of such subsidiaries, except to the extent that claims of
the Company, in its capacity as a creditor, may be recognized. The principal
sources of the Company's revenues are dividends and fees from its Affiliate
Banks and nonbank subsidiaries. See "REGULATORY MATTERS -- Dividend
Restrictions" for a discussion of the restrictions on the Affiliate Banks'
ability to pay dividends to the Company.
4
<PAGE>
The Company was incorporated as an Indiana corporation in 1982 and
has functioned as a bank holding company since its formation. The Company's
principal executive offices are located at 420 Main Street, Evansville,
Indiana 47708, and its telephone number is (812) 464-1434.
USE OF PROCEEDS
Except as may otherwise be provided in an applicable Prospectus
Supplement, the net proceeds to be received by the Company from the sale of
the Debt Securities being offered hereby will be used for repayment of
indebtedness, investments in and advances to subsidiaries of the Company,
common stock repurchases by the Company and other general corporate purposes,
including possible future acquisitions. Pending the uses described above,
such net proceeds may be invested in short-term investments.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
The following selected consolidated financial information for the
years ended December 31, 1992 through 1996 was derived from consolidated
financial statements of the Company and its subsidiaries which have been
audited by Arthur Andersen LLP, independent auditors for the Company, and is
qualified in its entirety by reference to such financial statements. Such
information below should be read in conjunction with the consolidated
financial statements, related notes and other financial information
incorporated herein by reference. See "INCORPORATION BY REFERENCE." The
financial information for the three months ended March 31, 1997 and 1996 is
unaudited but, in the opinion of management, all adjustments, consisting of
normal recurring adjustments, necessary for a fair presentation for such
periods have been included. The results for the three months ended March 31,
1997 are not necessarily indicative of the results of a full year or for
future periods. Dollar amounts shown in the table below are in thousands,
except for selected performance ratios.
<TABLE>
<CAPTION>
Three months
ended March 31 Years ended December 31
-------------- -----------------------
1997 1996 1996 1995 1994 1993 1994
RESULTS OF OPERATIONS
(taxable equivalent basis)
<S> <C> <C> <C> <C> <C> <C> <C>
Interest income. . . . . . . . . . . . $106,181 $99,236 $408,070 $389,131 $343,852 $336,890 $351,404
Interest expense . . . . . . . . . . . 49,177 47,315 190,631 186,500 146,152 144,427 166,991
-------- ------- -------- -------- -------- -------- --------
Net interest income. . . . . . . . . . 57,004 51,921 217,439 202,631 197,700 192,463 184,413
Provision for loan losses. . . . . . . 3,757 2,002 11,012 7,135 7,754 10,359 11,919
-------- ------- -------- -------- -------- -------- --------
Net interest income after
provision for loan losses . . . . . . 53,247 49,919 206,427 195,496 189,946 182,104 172,494
Noninterest income . . . . . . . . . . 11,433 10,262 44,801 39,594 34,876 33,993 29,485
Noninterest expense. . . . . . . . . . 38,154 35,841 152,320 147,315 147,295 135,259 123,451
-------- ------- -------- -------- -------- -------- --------
Income before income taxes . . . . . . 26,526 24,340 98,908 87,775 77,527 80,838 78,528
Income taxes . . . . . . . . . . . . . 10,468 9,668 38,729 33,836 28,524 30,268 29,913
-------- ------- -------- -------- -------- -------- --------
Net Income . . . . . . . . . . . . . . $ 16,058 $14,672 $ 60,179 $ 53,939 $ 49,003 $ 50,570 $ 48,615
======== ======= ======== ======== ======== ======== ========
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Three months
ended March 31 Years ended December 31
-------------- -----------------------
1997 1996 1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C> <C> <C>
PERIOD END BALANCES
Total assets $5,409,228 $5,067,471 $5,366,591 $5,103,195 $4,909,804 $4,748,112 $4,434,160
Total loans, net of
unearned income 3,535,543 3,272,746 3,523,300 3,261,746 3,098,820 2,810,453 2,606,563
Total deposits 4,208,029 4,137,256 4,268,024 4,183,082 3,875,752 3,898,967 3,723,039
Shareholders' equity 453,355 459,643 458,526 461,424 440,671 435,406 406,137
SELECTED PERFORMANCE RATIOS (based on averages)
Return on assets 1.21% 1.16% 1.17% 1.09% 1.03% 1.09% 1.11%
Return on equity (1) 14.27 12.93 13.29 12.01 10.92 11.38 12.45
Equity to assets 8.60 9.20 8.90 8.99 9.35 9.58 8.89
Primary capital to assets 9.45 10.01 9.72 9.85 10.25 10.43 9.72
Net charge-offs to
average loans 0.30 0.17 0.33 0.26 0.28 0.25 0.31
Allowance for loan losses
to average loans 1.31 1.28 1.31 1.28 1.43 1.57 1.47
</TABLE>
(1) Excludes unrealized gains (losses) on investment securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical consolidated ratios of
earnings to fixed charges of the Company and its subsidiaries for the periods
indicated:
<TABLE>
<CAPTION>
Three months ended
March 31 Years Ended December 31
------------------ -----------------------
1997 1996 1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C> <C> <C>
RATIO OF EARNINGS TO FIXED CHARGES (1)
Excluding interest on deposits 3.46x 4.49x 3.99x 3.68x 4.07x 5.50x 5.37x
Including interest on deposits 1.47 1.44 1.44 1.40 1.44 1.48 1.42
</TABLE>
(1) The ratio of earnings to fixed charges for the Company is computed by
dividing earnings by fixed charges. For purposes of calculating the
ratio of earnings to fixed charges, "earnings" is defined as pretax
income from continuing operations plus fixed charges. "Fixed
charges" include the total of interest expense, capitalized interest,
expensed or capitalized amortization of debt expense and any related
discount or premium, and such portion of rental expense which is
representative of the interest factor of each such rental.
6
<PAGE>
REGULATORY MATTERS
The following discussion sets forth certain elements of the
regulatory framework applicable to bank holding companies and their
subsidiaries and provides certain specific information relevant to the
Company. This regulatory framework is intended primarily for the protection
of depositors and the Federal deposit insurance funds and not for the
protection of holders of securities, including the Debt Securities. To the
extent that the following information describes statutory or regulatory
provisions, it is qualified in its entirety by reference to those provisions.
A change in the statutes, regulations or regulatory policies applicable to the
Company or its subsidiaries may have a material effect on the business of the
Company.
GENERAL
As a bank holding company, the Company is subject to regulation under
the BHC Act, and to inspection, examination and supervision by the Board of
Governors of the Federal Reserve System ("Federal Reserve"). Under the BHC
Act, bank holding companies generally may not acquire ownership or control of
more than 5% of the voting shares or substantially all the assets of any
company, including a bank, without the Federal Reserve's prior approval.
Similarly, bank holding companies generally may not acquire ownership or
control of a savings association without the prior approval of the Federal
Reserve. Further, branching by the Affiliate Banks is subject to the
jurisdiction, and requires the prior approval, of each Affiliate Bank's
primary federal banking regulator and, if the Affiliate Bank is a
state-chartered bank, the appropriate state banking regulator. In addition,
bank holding companies generally may engage, directly or indirectly, only in
banking and such other activities as are determined by the Federal Reserve to
be closely related to banking. Under the BHC Act, the Federal Reserve has the
authority to require a bank holding company to terminate any activity or
relinquish control of the nonbank subsidiary (other than a nonbank subsidiary
of a bank) upon the Federal Reserve's determination that such activity or
control constitutes a risk to the financial soundness and stability of any
bank subsidiary of the bank holding company. The Company and the Affiliate
Banks are subject to the Federal Reserve Act, which limits borrowings by the
Company and its nonbank subsidiaries from the Affiliate Banks and also limits
various other transactions between the Company and its nonbank subsidiaries
with the Affiliate Banks.
The Affiliate Banks which are national banks are supervised,
regulated and examined by the Office of the Comptroller of the Currency
("OCC"). The Affiliate Banks which are state banks chartered in Indiana are
supervised, regulated and examined by the Indiana Department of Financial
Institutions. The Affiliate Banks chartered in Kentucky are supervised,
regulated and examined by the Kentucky Department of Financial Institutions,
and those Affiliate Banks chartered in Illinois are supervised, regulated and
examined by the Illinois Commissioner of Banks and Trust Companies. In
addition, those Affiliate Banks which are state banks and members of the
Federal Reserve System are supervised and regulated by the Federal Reserve,
and those state banks which are not members of the Federal Reserve System are
supervised and regulated by the Federal Deposit Insurance Corporation
("FDIC"). The single Affiliate Bank which is a federal savings association is
supervised, regulated and examined by the Office of Thrift Supervision. Each
banking regulator has the authority to issue cease-and-desist orders if it
determines that the activities of a bank regularly represent an unsafe and
unsound banking practice or a violation of law.
7
<PAGE>
Both Federal and state law extensively regulates various aspects of
the banking business, such as, for example, reserve and capital requirements,
truth-in-lending and truth-in-savings disclosure, equal credit opportunity,
fair credit reporting, trading in securities and other aspects of banking
operations. The Company, the Affiliate Banks and the Company's nonbank
subsidiaries are also affected by the fiscal and monetary policies of the
Federal government and the Federal Reserve and by various other governmental
laws, regulations and requirements. Further, the earnings of the Company and
Affiliate Banks are affected by general economic conditions and prevailing
interest rates. Legislation and administrative actions affecting the banking
industry are frequently considered by the United States Congress, state
legislatures and various regulatory agencies. It is not possible to predict
with certainty whether such legislation or administrative actions will be
enacted or the extent to which the banking industry, in general, or the
Company and the Affiliate Banks, in particular, would be affected.
LIABILITY FOR BANK SUBSIDIARIES
The Federal Reserve has a policy to the effect that a bank holding
company is expected to act as a source of financial and managerial strength to
each of its subsidiary banks and to maintain resources adequate to support
each such subsidiary bank. This support may be required at times when the
Company may not have the resources to provide it. In addition, Section 55 of
the National Bank Act permits the OCC to order the pro rata assessment of
shareholders of a national bank whose capital has become impaired. If a
shareholder fails within three months to pay such an assessment, the OCC can
order the sale of the shareholder's stock to cover the deficiency. In the
event of a bank holding company's bankruptcy, any commitment by the bank
holding company to a federal bank regulatory agency to maintain the capital of
a subsidiary bank would be assumed by the bankruptcy trustee and entitled to
priority of payment.
Any depository institution insured by the FDIC may be held liable for
any loss incurred, or reasonably expected to be incurred, by the FDIC in
connection with (i) the default of a commonly controlled FDIC-insured
depository institution, or (ii) any assistance provided by the FDIC to a
commonly controlled FDIC-insured depository institution in danger of default.
"Default" is defined generally as the appointment of a conservator or receiver
and "in danger of default" is defined generally as the existence of certain
conditions indicating that a "default" is likely to occur in the absence of
regulatory assistance. In the event that such a default occurred with respect
to a bank, any loans to the bank from its parent holding company would be
subordinate in right of payment to payment of the bank's depositors and
certain of its other obligations.
CAPITAL REQUIREMENTS
The Company is subject to capital ratios, requirements and guidelines
imposed by the Federal Reserve, which are substantially similar to the ratios,
requirements and guidelines imposed by the Federal Reserve, the OCC and the
FDIC on the banks within their respective jurisdictions. These capital
requirements establish higher capital standards for banks and bank holding
companies that assume greater credit risks. For this purpose, a bank's or
holding company's assets and certain
8
<PAGE>
specified off-balance sheet commitments are assigned to four risk categories,
each weighted differently based on the level of credit risk that is ascribed
to such assets or commitments. A bank's or holding company's capital is
divided into two tiers: "Tier 1" capital, which includes common shareholders
equity, non-cumulative perpetual preferred stock and related surplus
(excluding auction rate issues), minority interests in equity accounts of
consolidated subsidiaries, less goodwill, certain identifiable intangible
assets and certain other assets; and "Tier 2" capital, which includes, among
other items, perpetual preferred stock not meeting the Tier 1 definition,
mandatory convertible securities, subordinated debt and allowances for loan
and lease losses, subject to certain limitations, less certain required
deductions.
Bank holding companies currently are required to maintain Tier 1 and
total capital (the sum of Tier 1 and Tier 2 capital) equal to at least 4% and
8% of total risk-weighted assets, respectively. At March 31, 1997, the
Company met both requirements, with Tier 1 and total capital equal to 12.71%
and 14.84% of its total risk-weighted assets, respectively.
In addition to the risk-based capital guidelines, the Federal Reserve
requires bank holding companies to maintain a minimum "leverage ratio" (Tier 1
capital to adjusted total assets) of 3%, if the holding company has the
highest regulatory rating and meets certain other requirements. The Company
maintains the highest regulatory rating for risk-based capital purposes and,
accordingly, is required to maintain a minimum "leverage ratio" of 3%. All
other bank holding companies are required to maintain a leverage ratio of 3%
plus at least 100 to 200 basis points. At March 31, 1997, the Company's
leverage ratio was 8.24%.
The foregoing capital requirements are minimum requirements. The
Federal Reserve may set capital requirements higher than the minimums
described above for holding companies whose circumstances warrant it. For
example, holding companies experiencing or anticipating significant growth may
be expected to maintain capital ratios including tangible capital positions
well above the minimum levels. The Federal Reserve has not, however, imposed
any such special capital requirements on the Company.
Additionally, the Federal Deposit Insurance Corporation Improvement
Act of 1991 ("FDICIA"), among other things, identifies five capital categories
for insured depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the category in
which an institution is classified. Failure to meet the capital guidelines
could also subject a banking institution to capital raising requirements. An
"undercapitalized" bank must develop a capital restoration plan and its parent
holding company must guarantee the bank's compliance with the plan. The
liability of the parent holding company under any such guarantee is limited to
the lesser of 5% of the bank's assets at the time it became "undercapitalized"
or the amount needed to comply with the plan. Furthermore, in the event of
the bankruptcy of the parent holding company, such guarantee would take
priority over the parent's general unsecured creditors. In addition, FDICIA
requires the various regulatory agencies to prescribe certain non-capital
standards for safety and executive compensation and permits regulatory action
against a financial institution that does not meet such standards.
9
<PAGE>
DIVIDEND RESTRICTIONS
The Company is dependent to a large extent on dividends from its
Affiliate Banks for its revenues. Various federal and state statutory
provisions limit the amount of dividends the Affiliate Banks can pay to the
Company without regulatory approval. At March 31, 1997, $26.5 million of the
total shareholders equity of the Affiliate Banks was available for payment of
dividends to the Company without approval by the applicable regulatory
authority.
In addition, federal bank regulatory authorities have authority to
prohibit the Company's affiliate banks from engaging in an unsafe or unsound
practice in conducting their business. The payment of dividends, depending
upon the financial condition of the bank in question, could be deemed to
constitute such an unsafe or unsound practice. The ability of the Affiliate
Banks to pay dividends in the future is presently, and could be further,
influenced by bank regulatory policies and capital guidelines as well as each
Affiliate Bank's earnings and financial condition.
INTERSTATE BANKING
Under the Riegle-Neal Interstate Banking and Branching Efficiency Act
of 1994 (the "Riegle-Neal Act"), subject to certain concentration limits, (i)
bank holding companies, such as the Company, are permitted to acquire banks
and bank holding companies located in any state of the United States, subject
to certain restrictions, and (ii) banks are permitted, beginning June 1, 1997,
to acquire branch offices outside their home states by merging with
out-of-state banks, purchasing branches in other states or establishing de
novo branch offices in other states; provided that, in the case of any such
purchase or opening of individual branches, the host state has adopted
legislation "opting in" to the relevant provisions of the Riegle-Neal Act; and
provided further, that, in the case of a merger with a bank located in another
state, the host state has not adopted legislation "opting out" of the relevant
provisions of the Riegle-Neal Act. The Company may, under the Riegle-Neal
Act, acquire banks in additional states and combine its Affiliate Banks under
a smaller number of separate bank charters.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture dated as of
July 23, 1997, as amended, supplemented or modified from time to time (the
"Indenture"), between the Company and Bank One, NA, as trustee (together with
any successor in such capacity, the "Trustee").
The form of the Indenture is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The statements and descriptions
in this Prospectus or in any Prospectus Supplement regarding provisions of the
Debt Securities and the Indenture are summaries thereof, do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all of the provisions of the Indenture and the Debt Securities, including
the definitions therein of certain terms. Certain capitalized terms used but
not otherwise defined herein have the meanings assigned to them in the
Indenture. Wherever particular sections of the Indenture or terms that are
defined in the Indenture are referred to herein or in a Prospectus Supplement,
it is intended that such sections or defined terms will be incorporated by
reference herein or therein, as the case may be.
10
<PAGE>
GENERAL
The Debt Securities will be direct, unsecured and unsubordinated
obligations of the Company and may be issued in one or more series. The
particular terms of each series of Debt Securities, as well as any
modifications or additions to the general terms of the Debt Securities as
described herein which may be applicable in the case of a particular series of
Debt Securities, are described in the Prospectus Supplement relating to such
series of Debt Securities. Accordingly, for a description of the terms of a
particular series of Debt Securities, reference must be made to both the
Prospectus Supplement relating thereto and to the description of Debt
Securities set forth in this Prospectus.
Reference is made to the Prospectus Supplement for the terms of the
particular series of Debt Securities being offered thereby, including, but not
limited to, the following: (i) the title of such Debt Securities and the
series in which such Debt Securities will be included; (ii) any limit on the
aggregate principal amount of such Debt Securities; (iii) the percentage of
their principal amount at which such Debt Securities will be issued and, in
the case of Original Issue Discount Securities, the principal amount thereof
payable upon acceleration of the maturity thereof; (iv) the date or dates on
which the principal of such Debt Securities is payable or the manner in which
such dates are determined; (v) the rate or rates (which may be fixed or
floating) or amount or amounts per annum at which such Debt Securities will
bear interest, if any, or the method of determining such rates or amounts;
(vi) the date from which such interest, if any, on such Debt Securities will
accrue, the dates on which such interest, if any, will be payable, the date on
which payment of such interest, if any, will commence and the record dates for
such interest payment dates, if any; (vii) the places of payment and the
places where such Debt Securities may be surrendered for registration of
transfer or exchange; (viii) the terms of any mandatory or optional redemption
(including any sinking fund provisions or any provisions for repayment at the
option of a Holder or upon the occurrence of a specified event); (ix) whether
such Debt Securities are to be issued initially or permanently in the form of
a global Debt Security and, if so, the identity of the Depository (as
hereinafter defined) for such global Debt Security; (x) any deletions from,
modifications of or additions to the Events of Default or covenants of the
Company with respect to such Debt Securities; and (xi) any other terms of such
Debt Securities.
The Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder or of any particular series of such
Debt Securities and provides that the Debt Securities may be issued thereunder
from time to time in one or more series up to the aggregate principal amount
which may be authorized from time to time by the Company. (Section 301 of the
Indenture) All Debt Securities issued under the Indenture will rank equally
and ratably with any other Debt Securities issued thereunder and other
unsecured and unsubordinated debt of the Company outstanding from time to
time. Because the Company is a holding company, the right of the Company, and
hence the right of creditors of the Company (including the Holders of the Debt
Securities), to participate in any distribution of the assets of any
subsidiary upon its liquidation or reorganization or otherwise is necessarily
subject to the prior claims of creditors of the subsidiary, except to the
extent that claims of the Company itself as a creditor of the subsidiary may
be recognized.
11
<PAGE>
Unless the Prospectus Supplement relating to a particular series of
Debt Securities specifies otherwise, Debt Securities will be issued in
denominations of $1,000 and integral multiples of $1,000 in excess thereof.
No service charge will be made for any transfer or exchange of Debt
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
(Sections 302 and 305 of the Indenture)
Some of the Debt Securities may be issued under the Indenture as
Original Issue Discount Securities (bearing no interest or interest at a rate
which at the time of issuance is below market rates) to be sold at a discount
below their stated principal amount. Certain United States Federal income tax
consequences and other special considerations applicable to any such Original
Issue Discount Securities will be described in the Prospectus Supplement
relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating to a
particular series of Debt Securities, the principal of and any premium or
interest on Debt Securities issued in certificated form will be payable, and,
subject to certain limitations, the transfer of Debt Securities will be
registrable, at the offices of the Trustee designated for that purpose in
Columbus, Ohio and The City of New York, provided that at the option of the
Company, interest may be paid by check, wire transfer or any other means
permitted in the form of such Debt Securities. Unless otherwise indicated in
an applicable Prospectus Supplement, payment of any installment of interest on
a Debt Security will be made to the person in whose name such Debt Security is
registered at the close of business on the Regular Record Date for such
interest payment. In the case of global Debt Securities (which will be
registered in the name of the Depository or its nominee), payment will be made
to the Depository or its nominee in accordance with the then-existing
arrangements between the paying agent(s) for such global Debt Securities and
the Depository. (Sections 305, 307 and 1002 of the Indenture) Reference is
also made to the section entitled "DESCRIPTION OF NOTES--Book-Entry Notes" in
the accompanying Prospectus Supplement.
The Indenture does not contain any provision that limits the ability
of the Company to incur indebtedness (either directly or through merger or
consolidation) or that would afford Holders of Debt Securities protection in
the event of a highly leveraged or similar transaction involving the Company,
except as described herein under "DESCRIPTION OF DEBT SECURITIES--Limitation
on Liens" and "--Merger and Consolidation." Reference is made to the
Prospectus Supplement relating to the series of Debt Securities offered
thereby for information with respect to any deletions from, modifications of
or additions to, the Events of Default or covenants that may be included in
the terms of such series of Debt Securities, including any addition of a
covenant or other provision providing event risk or similar protection.
12
<PAGE>
Under the Indenture, the Company will have the ability, in addition
to the ability to issue Debt Securities with terms different from those of
Debt Securities previously issued, to "reopen" a previous issue of a series of
Debt Securities and issue additional Debt Securities of such series.
LIMITATION ON LIENS
Under the Indenture, the Company may not, and may not permit any
Subsidiary to, create or suffer to permit or exist any lien of any kind, as
security for borrowed money so long as any of the Debt Securities or coupons
appertaining thereto are Outstanding, upon the shares of capital stock of any
Significant Subsidiary without effectively providing prior to or concurrently
therewith that the Debt Securities will be secured equally and ratably with or
prior to the indebtedness or other obligations secured by such lien. (Section
1007 of the Indenture) Under the Indenture, a "Significant Subsidiary" is a
Subsidiary of the Company, the total assets of which equal or exceed 25% of
the total assets of the Company as shown on the Company's consolidated balance
sheet at the end of the fiscal quarter prior to the date of determination.
LIMITATION ON SALE OF STOCK
Under the Indenture, the Company may not, and may not permit any
Significant Subsidiary to, sell, assign, transfer or otherwise dispose of, and
will not permit any Significant Subsidiary to issue (other than to the
Company), any capital stock of such Significant Subsidiary or securities
convertible into, or options, warrants or rights to subscribe for or to
purchase, any capital stock of any such Significant Subsidiary except with
respect to sales of shares of capital stock of the Significant Subsidiary (i)
to an individual for the purpose of qualifying such individual to serve as a
director of such Significant Subsidiary; (ii) for cash consideration that is
at least equal to the fair market value of such stock if the Company will
continue to own not less than 80% of each class of capital stock of such
Significant Subsidiary; (iii) made in connection with a merger or
consolidation if, after giving effect to such merger or consolidation, the
Company's or any such Significant Subsidiary's proportionate ownership share
in the resulting or surviving entity is not less than its proportionate
ownership share in such Significant Subsidiary immediately prior to such
merger or consolidation; (iv) made in compliance with a final order of a court
or regulatory authority of competent jurisdiction; or (v) made by a
Significant Subsidiary to the Company. (Section 1008 of the Indenture)
EVENTS OF DEFAULT, NOTICE AND WAIVER
Unless otherwise indicated in the Prospectus Supplement relating to a
particular series of Debt Securities, if an Event of Default with respect to
any Debt Securities of any series Outstanding under the Indenture will occur
and be continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the Debt Securities of that series Outstanding may
declare, by notice as provided in the Indenture, the principal amount (or such
lesser amount as may be provided for in the Debt Securities of that series) of
13
<PAGE>
all the Debt Securities of that series Outstanding to be due and payable
immediately; provided, that in the case of an Event of Default involving
certain events in bankruptcy, insolvency or reorganization, acceleration is
automatic; and, provided further, that if all Events of Default with respect
to Debt Securities of that series will have been cured, or waived as
hereinafter provided, and all amounts due otherwise than on account of such
acceleration will have been paid or deposited with the Trustee, the Holders of
a majority in aggregate principal amount of the Debt Securities of that series
then Outstanding may rescind and annul such acceleration and its consequences.
(Section 502 of the Indenture) Upon acceleration of the Maturity of Original
Issue Discount Securities, an amount less than the principal amount thereof
will become due and payable. Reference is made to the Prospectus Supplement
relating to any Original Issue Discount Securities for the particular
provisions relating to acceleration of the Maturity thereof. Any past default
under the Indenture with respect to Debt Securities of any series, and any
Event of Default arising therefrom, may be waived by the Holders of a majority
in aggregate principal amount of the Debt Securities of such series
Outstanding under the Indenture, except in the case of (i) default in payment
of the principal of or any premium or interest on, or any Additional Amounts
in respect of, any Debt Securities of such series or (ii) default in respect
of a covenant or provision which may not be amended or modified without the
consent of the Holder of each Outstanding Debt Security of such series
affected. (Section 513 of the Indenture)
Each of the following constitutes an Event of Default with respect to
each series of Debt Securities under the Indenture: (i) default in the
payment of any interest or Additional Amounts payable in respect of any Debt
Security of such series or any coupon appertaining thereto when such interest
or Additional Amounts become due and payable, and continuance of such default
for a period of 30 days; (ii) default in the payment of the principal of and
any premium on any Debt Security of such series when it becomes due and
payable, whether at the Stated Maturity, upon redemption or repayment, by
acceleration or otherwise; (iii) default in the making of any sinking fund
payment on any Debt Security of such series; (iv) default in the performance
or breach of any covenant or warranty of the Company contained in the
Indenture for the benefit of such series or in the Debt Securities of such
series, and the continuance of such default or breach for 90 days after
written notice has been given as provided in the Indenture; (v) acceleration
of the maturity of indebtedness for money borrowed of the Company in a
principal amount in excess of $25 million if such acceleration is not annulled
or such indebtedness is not discharged within 15 days after written notice as
provided in the Indenture; (vi) certain events in bankruptcy, insolvency or
reorganization; and (vii) any other Event of Default provided with respect to
the Debt Securities of such series. (Section 501 of the Indenture)
The Trustee is required, within 90 days after the occurrence of a
default with respect to the Debt Securities of any series which is known to
the Trustee and is continuing (without regard to any grace period or notice
requirements), to give to the Holders of the Debt Securities of such series
notice of such default; provided, however, that, except in the case of a
default in the payment of the principal of or any premium or interest on, or
Additional Amounts in respect of, any Debt Securities of such series or in the
payment of any sinking fund installment with respect to the Debt Securities of
such series, the Trustee will be protected in withholding such notice if it in
good faith determines that the withholding of such notice is in the interests
of the Holders of the Debt Securities and coupons of such series; and provided
further that, in the case of any default referred to in clause (iv) of the
preceding paragraph with respect to the Debt Securities of such series, no
such notice to Holders will be given until at least 30 days after the
occurrence thereof. (Section 602 of the Indenture)
14
<PAGE>
The Trustee, subject to its duties during a default to act with the
required standard of care, may require indemnification by any of the Holders
of the Debt Securities of any series with respect to which a default has
occurred before proceeding to exercise any right or power under the Indenture
at the request of such Holders of the Debt Securities of such series or any
related coupons. (Sections 601 and 603 of the Indenture) Subject to such
right of indemnification and to certain other limitations, the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of
any series may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of such series.
(Section 512 of the Indenture)
No Holder of a Debt Security of any series or any related coupons may
institute any action against the Company under the Indenture (except actions
for payment of overdue principal of, premium, if any, or interest, if any, on
and any Additional Amounts in respect of such Debt Security) unless the
Holders of at least 25% in aggregate principal amount of the Debt Securities
of that series then Outstanding under the Indenture will have requested the
Trustee to institute such action and offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request and the Trustee will not have instituted such
action within 60 days of such request. (Sections 507 and 508 of the
Indenture)
MERGER AND CONSOLIDATION
The Company may consolidate with, merge with or into or sell or
convey all or substantially all of its assets to any other corporation,
association, company or business trust, provided that (i) (a) in the case of a
merger, the Company is the surviving company in the merger, or (b) the entity
surviving the merger, formed by such consolidation or which acquires such
assets will be a corporation, association, company or business trust organized
and existing under the laws of the United States of America or a State thereof
and will expressly assume payment of the principal of and any premium and
interest on, and any Additional Amounts in respect of, all the Debt Securities
and the performance and observance of all of the covenants of the Indenture
and the Debt Securities to be performed or observed by the Company and (ii)
the Company or such successor entity, as the case may be, will not immediately
thereafter be in default in the performance or observance of any such covenant
under the Indenture and the Debt Securities. (Section 801 of the Indenture)
15
<PAGE>
MODIFICATION AND WAIVER
Modification and amendment of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected thereby, provided that no such modification or amendment may, without
the consent of the Holder of each Outstanding Debt Security affected thereby,
(i) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Outstanding Debt Security; (ii) reduce the
principal amount of, or the rate or amount of interest on, or any premium or
Additional Amounts payable with respect to, any Debt Security; (iii) reduce
the amount of principal of an Original Issue Discount Security that would be
due and payable upon acceleration of the Maturity thereof or that would be
provable in bankruptcy; (iv) adversely affect any right of repayment at the
option of the Holder of any Debt Security; (v) change any Place of Payment of
the principal of, any premium or interest on or any Additional Amounts in
respect of, any Debt Security; (vi) impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity, or any date
of redemption or repayment, thereof; (vii) reduce the percentage in aggregate
principal amount of Outstanding Debt Securities of any series necessary to
modify or amend the Indenture with respect to such series or reduce the
percentage of Outstanding Debt Securities of any series necessary to waive any
past default or compliance with certain restrictive provisions to less than a
majority in aggregate principal amount of such series, or reduce certain
requirements of the Indenture for quorum or voting; or (viii) modify the
provisions of the Indenture described in this paragraph or those regarding
waiver of compliance with certain provisions of, or certain defaults and their
consequences under, the Indenture, except to increase the percentage of
Outstanding Debt Securities necessary to modify and amend the Indenture or to
give any such waiver, and except to provide that certain other provisions of
the Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Debt Security affected thereby. The Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of any series
may waive compliance by the Company with certain restrictive provisions
applicable to such series. (Sections 902 and 1009 of the Indenture)
Modification and amendment of the Indenture may be made by the
Company and the Trustee without the consent of any Holder of Outstanding Debt
Securities or coupons, for any of the following purposes: (i) to evidence the
succession of another corporation to the Company and the assumption of the
covenants of the Company; (ii) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Debt Securities or to surrender
any right or power conferred upon the Company; (iii) to add any additional
Events of Default with respect to all or any series of Debt Securities; (iv)
to add to or change any restrictions on the payment of the principal of or any
premium or interest on Debt Securities, to modify the provisions relating to
Global Debt Securities or to permit the issuance of Debt Securities in
uncertificated form, provided any such action does not adversely affect the
interests of the Holders of the Debt Securities of any series or any related
coupons in any material respect; (v) to add to, change or eliminate any
provision of the Indenture, provided that such amendment will become effective
only if there is no Outstanding Debt Security of any series entitled to the
benefit of such provision or such amendment does not apply to any then
Outstanding Debt Security; (vi) to secure the Debt Securities pursuant to the
requirements of the Indenture or otherwise; (vii) to establish the form or
terms of the Debt Securities of any series and any related coupons; (viii) to
evidence and provide for the acceptance of appointment by a successor trustee
with respect to the Debt Securities of one or more series and to add to or
change any of the provisions as will be necessary to provide for or facilitate
the administration of the trusts under the Indenture by more than one Trustee;
(ix) to provide for the discharge of the Indenture with respect to the Debt
Securities of any series by the deposit of monies or Government Obligations in
trust; (x) to change the conditions, limitations and restrictions on the
authorized amount, terms or purposes of issuance, authentication and delivery
of the Debt Securities as set forth in the Indenture, the Debt Securities and
the Prospectus Supplement relating thereto; or (xi) to cure any ambiguity,
defect or inconsistency in the Indenture or to make any other provisions with
respect to matters or questions arising under the Indenture, provided such
action does not adversely affect the interests of the Holders of the Debt
Securities of any series or any related coupons in any material respect.
(Section 901 of the Indenture)
16
<PAGE>
SATISFACTION AND DISCHARGE
Unless the Prospectus Supplement relating to a particular series of
Debt Securities specifies otherwise, the Company and the Trustee, without the
consent of any Holder of Outstanding Debt Securities, may execute a
supplemental indenture to provide that the Company will be discharged from any
and all obligations in respect of the Debt Securities of any series (except
for certain obligations to register the transfer or exchange of Debt
Securities, to replace stolen, lost or mutilated Debt Securities, to maintain
paying agencies and to hold moneys for payment in trust) upon the irrevocable
deposit with the Trustee, in trust, of money or Government Obligations, or a
combination thereof, which through the payment of interest and principal
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of, any premium and interest on, and any
mandatory sinking fund payments or Additional Amounts in respect of the Debt
Securities of such series on the dates such payments are due in accordance
with the terms of the Indenture and such Debt Securities. Such a supplemental
indenture may only be executed if certain conditions have been satisfied,
including that the Company has received from, or there has been published by,
the United States Internal Revenue Service a ruling, or there has been a
change in the applicable Federal income tax law, in either case, to the effect
that such a discharge will not cause the Holders of the Debt Securities of
such series to recognize income, gain or loss for federal income tax purposes.
(Section 901 of the Indenture)
The Indenture provides that, when the conditions set forth in Section
401 thereof have been satisfied with respect to a series of Debt Securities,
upon the request of the Company, the Indenture will cease to be of further
effect with respect to such series (except as to any surviving right of
registration of transfer or exchange of Debt Securities expressly provided for
therein). Such conditions include that (i) all Debt Securities of such series
and all coupons, if any, under the Indenture either will have been delivered
to the Trustee for cancellation or will be due, or are to be called for
redemption, within one year and (ii) with respect to all Debt Securities of
such series under the Indenture but not previously delivered to the Trustee
for cancellation, there will have been irrevocably deposited with the Trustee,
in trust, money or government Obligations, or a combination thereof, which
through the payment of interest and principal thereof in accordance with their
terms will provide money in an amount sufficient to pay the principal of, and
any premium and interest on and any Additional Amounts, all such Debt
Securities and coupons on the dates such payments are due in accordance with
the terms of the Indenture and such Debt Securities. (Section 401 of the
Indenture)
17
<PAGE>
DEFEASANCE OF CERTAIN OBLIGATIONS
Unless otherwise provided in the Prospectus Supplement relating to a
series of Debt Securities, the Company will have the option to omit to comply
with the covenants described under "DESCRIPTION OF DEBT
SECURITIES--Limitations on Liens" above, if applicable, and any additional
covenants not included in the original Indenture that may be specified as
applicable to such series in the Prospectus Supplement with respect thereto.
The Company, in order to exercise such option, will be required to irrevocably
deposit with the Trustee, in trust, money or Government Obligations, or a
combination thereof, which through the payment of interest and principal
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of, any premium and interest on and any
mandatory sinking fund payments or analogous payments on any Additional
Amounts in respect of the Debt Securities of such series on the dates such
payments are due in accordance with the terms of the Indenture and such Debt
Securities. The Company will also be required to deliver to the Trustee an
Opinion of Counsel to the effect that the deposit and related covenant
defeasance will not cause the Holders of the Debt Securities of such series to
recognize income, gain or loss for Federal income tax purposes. (Section 1010
of the Indenture) The Prospectus Supplement relating to a particular series
of Debt Securities may describe further provisions, if any, permitting such an
omission to comply.
THE TRUSTEE UNDER THE INDENTURE
Several Affiliate Banks maintain correspondent bank accounts with
affiliates of Bank One, NA.
The Indenture provides that an alternative Trustee may be appointed
by the Company with respect to any particular series of Debt Securities. Any
such appointment will be described in the Prospectus Supplement relating to
such series of Debt Securities.
The Trustee, prior to default, undertakes to perform only such duties
as are specifically set forth in the Indenture and, after default, is required
to exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to such provision, the Trustee
is under no obligation to exercise any of the rights or powers vested in it by
the Indenture at the request of any Holder of Debt Securities, unless offered
reasonable indemnity by such Holder against the costs, expenses and
liabilities which might be incurred thereby. The Trustee is not required to
expend or risk its own funds or otherwise incur financial liability in the
performance of its duties if the Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it. The Indenture contains
other provisions limiting the responsibilities and liabilities of the Trustee.
(Sections 601 and 603 of the Indenture)
18
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters or
dealers; directly to other purchasers; through agents; or through any
combination of such methods of sale. Any such underwriter, dealer or agent
involved in the offer and sale of the Debt Securities being offered hereby
will be named in an applicable Prospectus Supplement or Prospectus Supplements
(including any Pricing Supplement or Pricing Supplements).
The distribution of the Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices
relating to such prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may
receive compensation from the Company or from purchasers of Debt Securities
for whom they may act as agents, in the form of discounts, concessions or
commissions. Underwriters may sell Debt Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent. Underwriters, dealers and agents that participate
in the distribution of Debt Securities may be deemed to be underwriters, and
any discounts or commissions received by them from the Company and any profit
on the resale of Debt Securities by them may be deemed to be underwriting
discounts and commissions, under the Securities Act. Any compensation paid by
the Company to underwriters, dealers or agents in connection with the offering
of the Debt Securities, and any discounts, concessions or commissions allowed
by underwriters to participating dealers, will be described in an applicable
Prospectus Supplement or Pricing Supplement.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the distribution of Debt
Securities may be entitled to indemnification by the Company against and/or
contribution in certain instances by the Company toward liabilities, including
liabilities under the Securities Act, and to reimbursement for certain
expenses.
Certain of the underwriters, dealers or agents and their associates
may be customers of, engage in transactions with and perform services for the
Company or one or more of its affiliates in the ordinary course of business.
The specific terms and manner of sale, including the place and time
of delivery, of the Debt Securities in respect of which this Prospectus is
being delivered will be set forth or summarized in the applicable Prospectus
Supplement.
LEGAL MATTERS
Unless otherwise indicated in a Prospectus Supplement, the validity
of each issue of the Debt Securities offered hereby will be passed upon for
the Company by Krieg DeVault Alexander & Capehart, Indianapolis, Indiana, and
certain legal matters relating to the Debt Securities offered hereby will be
passed upon for any underwriters, dealers or agents of a particular issue of
Debt Securities by Baker & Daniels, Indianapolis, Indiana.
19
<PAGE>
EXPERTS
The consolidated financial statements of the Company and its
subsidiaries appearing in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 have been audited by Arthur Andersen LLP,
independent auditors, as set forth in their report thereon with respect to
such financial statements and incorporated herein by reference. See
"INCORPORATION BY REFERENCE." Such financial statements are, and the audited
financial statements to be included in subsequently filed documents will be,
incorporated herein in reliance upon the reports of Arthur Andersen LLP
pertaining to such financial statements (to the extent covered by consents
filed with the Commission) given upon the authority of such firm as experts in
accounting and auditing.
20
<PAGE>
No dealer, salesperson or other person has been
authorized to give any information or to make any
representation other than contained in or incorporated
by reference into this Prospectus Supplement, the
applicable Pricing Supplement or the Prospectus in
connection with the offer made by this Prospectus
Supplement, and, if given or made, such information or
representations must not be relied upon as having been
authorized by the Company or the Agent. Neither the
delivery of this Prospectus Supplement, the applicable
Pricing Supplement or the Prospectus nor any sale made
hereunder and thereunder will under any circumstances
create an implication that there has not been any change
in the affairs of the Company since the date hereof.
This Prospectus Supplement, the applicable Pricing
Supplement and the Prospectus do not constitute an offer
to sell or a solicitation of an offer to buy by anyone
in any jurisdiction in which such offer or solicitation
is not authorized or in which the person making such
offer is not qualified to do so or to anyone to whom it
is unlawful to make such offer or solicitation.
------------------------
TABLE OF CONTENTS
PAGE
----
PROSPECTUS SUPPLEMENT
Risk Factors . . . . . . . . . . . . . . . . . . S-3
Description of Notes . . . . . . . . . . . . . . S-4
Certain United States Federal Income Tax
Considerations . . . . . . . . . . . . . . . S-25
Plan of Distribution . . . . . . . . . . . . . . S-33
Legal Matters . . . . . . . . . . . . . . . . . . S-35
PROSPECTUS
Available Information . . . . . . . . . . . . . . 2
Incorporation by Reference . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . 4
Use of Proceeds . . . . . . . . . . . . . . . . . 5
Selected Consolidated Financial Information . . . 5
Ratio of Earnings to Fixed Charges . . . . . . . 6
Regulatory Matters . . . . . . . . . . . . . . . 7
Description of Debt Securities . . . . . . . . . 10
Plan of Distribution . . . . . . . . . . . . . . 19
Legal Matters . . . . . . . . . . . . . . . . . . 19
Experts . . . . . . . . . . . . . . . . . . . . 20
$150,000,000
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
OLD NATIONAL BANCORP
[ONB LOGO]
------------------------------
PROSPECTUS SUPPLEMENT
------------------------------
NatCity Investments, Inc.
July 23, 1997
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses of the
Registrant in connection with the offering described in this Registration
Statement:
Securities and Exchange Commission
Registration Fee . . . . . . . . . . . . . . . $ 45,500
Printing and Engraving Expenses . . . . . . . . $ 30,000 (1)
Rating Agencies Fees . . . . . . . . . . . . . . $100,000 (1)
Accounting Fees and Expenses . . . . . . . . . . $ 25,000 (1)
Legal Fees and Expenses . . . . . . . . . . . . $130,000 (1)
Blue Sky Fees and Expenses . . . . . . . . . . . $ 10,000 (1)
Trustee Fees and Expenses . . . . . . . . . . . $ 5,000 (1)
Miscellaneous Expenses . . . . . . . . . . . . . $ 14,500 (1)
=============
Total . . . . . . . . . . . . . . . . . . . . . $360,000 (1)
___________________
(1) Estimated
Item 15. Indemnification of Directors and Officers.
The Registrant's Articles of Incorporation and By-Laws provide that
the Registrant will indemnify any person who is or was a director, officer or
employee of the Registrant or of any other corporation for which he is or was
serving in any capacity at the request of the Registrant against all liability
and expense that may be incurred in connection with any claim, action, suit or
proceeding with respect to which such director, officer or employee is wholly
successful or acted in good faith in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Registrant or such other
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. A director,
officer or employee of the Registrant is entitled to be indemnified as a
matter of right with respect to those claims, actions, suits
II-1
<PAGE>
or proceedings where he has been wholly successful. In all other cases, such
director, officer or employee will be indemnified only if the Board of
Directors of the Registrant or independent legal counsel finds that he has met
the standards of conduct set forth above.
The Indiana Business Corporation Law provides in regard to
indemnification of directors and officers as follows:
23-1-37-8 INDEMNIFICATION OF DIRECTOR AGAINST LIABILITY
Sec. 8.(a) A corporation may indemnify an individual made a party
to a proceeding because the individual is or was a director against liability
incurred in the proceeding if;
(1) the individual's conduct was in good faith; and
(2) the individual reasonably believed;
(A) in the case of conduct in the individual's
official capacity with the corporation, that
the individual's conduct was in its best
interest; and
(B) in all other cases, that the individual's
conduct was at least not opposed to its best
interests; and
(3) in the case of any criminal proceeding, the
individual either;
(A) had reasonable cause to believe the
individual's conduct was lawful; or
(B) had no reasonable cause to believe the
individual's conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan
for a purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the director did not meet the standard of
conduct described in this section.
23-1-37-9 MANDATORY INDEMNIFICATION OF DIRECTOR AGAINST EXPENSE
Sec. 9. Unless limited by its articles of incorporation, a
corporation shall indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which the director
was a party because the director is or was a director of the corporation
against reasonable expenses incurred by the director in connection with the
proceeding.
II-2
<PAGE>
23-1-37-13 OFFICERS, EMPLOYEES OR AGENTS; INDEMNIFICATION AND
ADVANCE OF EXPENSE
Sec. 13. Unless a corporation's articles of incorporation provide
otherwise:
(1) an officer of the corporation, whether or not a
director, is entitled to mandatory indemnification under section 9 of
this chapter, and is entitled to apply for court-ordered
indemnification under section 11 of this chapter, in each case to the
same extent as a director;
(2) the corporation may indemnify and advance expenses
under this chapter to an officer, employee, or agent of the
corporation, whether or not a director, to the same extent as to a
director; and
(3) a corporation may also indemnify and advance
expenses to an officer, employee, or agent whether or not a director,
to the extent, consistent with public policy, that may be provided by
its articles of incorporation, bylaws, general or specific action of
its board of directors, or contract.
23-1-37-15 INDEMNIFICATION RIGHTS UNDER ARTICLES OF INCORPORATION,
BY-LAWS OR RESOLUTIONS
Sec. 15. (a) The indemnification and advance for expenses provided
for or authorized by this chapter does not exclude any other rights to
indemnification and advance for expenses that a person may have under:
(1) a corporation's articles of incorporation or bylaws;
(2) a resolution of the board of directors or of the
shareholders; or
(3) any other authorization, whenever adopted, after
notice, by a majority vote of all the voting shares then issued and
outstanding.
(b) If the articles of incorporation, by-laws, resolutions of the
board of directors or of the shareholders, or other duly adopted authorization
of indemnification or advance for expenses limit indemnification or advance
for expenses, indemnification and advance for expenses are valid only to the
extent consistent with the articles, by-laws, resolutions of the board of
directors or of the shareholders, or other duly adopted authorization of
indemnification or advance for expenses.
(c) This chapter does not limit a corporation's power to pay or
reimburse expenses incurred by a director, officer, employee, or agent in
connection with the person's appearance as a witness in a proceeding at a time
when the person has not been made a named defendant or respondent to the
proceeding.
II-3
<PAGE>
Item 16. Exhibits.
The following exhibits are being filed as part of this registration
statement:
Exhibit Number Description
-------------- -----------
1.1 Form of Distribution Agreement
4.1 Form of Indenture
4.2* Form of Floating Rate Note
4.3* Form of Fixed Rate Note
4.4* Form of Interest Calculation Agency Agreement
5.1* Opinion of Krieg DeVault Alexander & Capehart
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1* Consent of Arthur Andersen LLP
23.2* Consent of Krieg DeVault Alexander & Capehart
(contained in Exhibit 5.1)
24.1* Powers of Attorney
25.1 Form T-1 Statement of Eligibility of Trustee
-------------------
* Previously filed by Registrant as an exhibit to this Registration
Statement.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in 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 maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the registration
statement; and
II-4
<PAGE>
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for 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.
(b) 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 the time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
II-5
<PAGE>
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.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(e) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the Trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act ("Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-6
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Evansville, State of Indiana, on July 21, 1997.
OLD NATIONAL BANCORP
By:/S/ RONALD B. LANKFORD
-----------------------------
Ronald B. Lankford, President
Pursuant to the requirements of the Securities Act of 1933, as
amended, this amendment has been signed by the following persons in the
capacities indicated below as of July 21, 1997.
Name Title
- ---- -----
/S/ JOHN N. ROYSE Chairman of the Board, Director and Chief
- -------------------------- Executive Officer (Principal Executive Officer)
John N. Royse
/S/ STEVE H. PARKER Senior Vice President and Chief Financial
- -------------------------- Officer (Principal Accounting Officer)
Steve H. Parker
DAVID L. BARNING* Director
- --------------------------
David L. Barning
RICHARD J. BOND* Director
- --------------------------
Richard J. Bond
ALAN W. BRAUN* Director
- --------------------------
Alan W. Braun
JOHN J. DAUS, JR.* Director
- --------------------------
John J. Daus, Jr.
WAYNE A. DAVIDSON* Director
- --------------------------
Wayne A. Davidson
II-7
<PAGE>
LARRY E. DUNIGAN* Director
- --------------------------
Larry E. Dunigan
DAVID E. ECKERLE* Director
- --------------------------
David E. Eckerle
THOMAS B. FLORIDA* Director
- --------------------------
Thomas B. Florida
PHELPS L. LAMBERT* Director
- --------------------------
Phelps L. Lambert
RONALD B. LANKFORD* President and Director
- --------------------------
Ronald B. Lankford
LUCIEN H. MEIS* Director
- --------------------------
Lucien H. Meis
LOUIS L. MERVIS* Director
- --------------------------
Louis L. Mervis
DAN W. MITCHELL* Director
- --------------------------
Dan W. Mitchell
JAMES A. RISINGER* Director
- --------------------------
James A. Risinger
MARJORIE Z. SOYUGENC* Director
- --------------------------
Marjorie Z. Soyugenc
CHARLES D. STORMS* Director
- --------------------------
Charles D. Storms
*By:/S/ JEFFREY L. KNIGHT Attorney-in-Fact
--------------------------
Printed Name: Jeffrey L. Knight
-----------------
II-8
Exhibit 1.1
OLD NATIONAL BANCORP
Medium-Term Notes
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
July ___, 1997
NatCity Investments, Inc.
251 North Illinois Street, Suite 500
Indianapolis, Indiana 46204
Dear Sirs:
Old National Bancorp, an Indiana corporation (the "Company"), confirms
its agreement with NatCity Investments, Inc. (the "Agent") with respect to the
issue and sale by the Company of its Medium-Term Notes Due Nine Months or More
From Date of Issue (the "Notes"). The Notes are to be issued pursuant to an
Indenture, dated as of July ___, 1997 (as amended, supplemented or modified
from time to time, the "Indenture"), between the Company and Bank One, NA, as
trustee (the "Trustee"). As of the date hereof, the Company has authorized
the issuance and sale of up to $150,000,000 aggregate initial offering price
of Notes to or through the Agent pursuant to the terms of this Agreement. It
is understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agent pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Distribution Agreement (the "Agreement") provides both for the sale
of Notes by the Company directly to investors (as may from time to time be
agreed to by the Company and the Agent), in which case the Agent will act as
the agent of the Company in soliciting offers for the purchase of the Notes,
and for the sale of Notes by the Company to the Agent as principal for resale
to investors and other purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-29433) and pre-
effective amendment No. 1 thereto for the registration of debt securities of
the Company under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 430A or Rule
415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), and the Company has filed or
<PAGE>
will file such post-effective amendments thereto as may be required prior to
any acceptance by the Company of an offer for the purchase of Notes. Such
registration statement (as so amended) has been declared effective by the
Commission and the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Such registration statement, as so
amended (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit)
is referred to herein as the "Registration Statement"; and the final
prospectus, dated July ___, 1997, constituting a part of the Registration
Statement, and all applicable amendments or supplements thereto (including the
final prospectus supplement and pricing supplement relating to the offering of
Notes), in the form first furnished to the Agent, are collectively referred to
herein as the "Prospectus" (except that if any revised prospectus shall be
provided to the Agent by the Company for use in connection with the offering
of the Notes, the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agent); provided, however,
that all references to the "Registration Statement" and the "Prospectus" shall
also be deemed to include all documents incorporated therein by reference
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act");
provided, further, that if the Company files a registration statement with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations (a "Rule 462(b)
Registration Statement"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer
to any prospectus used before the registration statement became effective and
any prospectus furnished by the Company after the registration statement
became effective and before any acceptance by the Company of an offer for the
purchase of Notes which omitted information to be included upon pricing in a
form of prospectus filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations. For purposes of this Agreement, all references to the
Registration Statement, Prospectus or preliminary prospectus or to any
amendment or supplement thereto shall be deemed to include any copy filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly
on its own behalf, the Company hereby appoints the Agent as the agent of the
Company for purpose of soliciting purchases of the Notes from the Company by
others.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agent shall have no responsibility for maintaining records
with respect to the aggregate initial offering price of Notes sold, or of
otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
-2-
<PAGE>
(c) Solicitations as Agent. Unless otherwise agreed upon by the Agent
and the Company, the Agent, acting solely as agent for the Company and not as
principal, will solicit offers for the purchase of the Notes. The Agent will
communicate to the Company, orally or in writing, each reasonable offer to
purchase Notes solicited by it on an agency basis, other than those offers
rejected by the Agent. The Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes, in whole or in
part, and any such rejection shall not be deemed a breach of its agreement
contained herein. The Company may, in its discretion, accept or reject any
proposed purchase of Notes, in whole or in part. The Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it on an agency
basis and accepted by the Company. The Agent shall not have any liability to
the Company in the event that any such purchase is not consummated for any
reason. If the Company shall default on its obligation to deliver Notes to a
purchaser whose offer has been solicited by the Agent on an agency basis and
accepted by the Company, the Company shall (i) hold the Agent harmless against
any loss, claim or damage arising from or as a result of such default by the
Company and (ii) pay to the Agent any commission to which it would otherwise
be entitled absent such default.
(d) Purchases as Principal. The Agent shall not have any obligation to
purchase Notes from the Company as principal. However, the Agent may agree
from time to time to purchase Notes from the Company as principal for resale
to investors and other purchasers determined by the Agent. Absent such
agreement, the Agent shall be deemed to be acting solely as the agent for the
Company in connection with any offering of Notes by the Company through the
Agent. Any purchase of Notes from the Company by the Agent as principal shall
be made in accordance with Section 3(b) hereof.
(e) Reliance. The Company and the Agent agree that any Notes purchased
by the Agent as principal shall be purchased, and any Notes the placement of
which the Agent arranges as the agent of the Company shall be placed by the
Agent, in reliance on the representations, warranties, covenants and
agreements of the Company contained herein and on the terms and conditions and
in the manner provided herein.
SECTION 2. Representations and Warranties by the Company.
The Company represents and warrants to the Agent, as of the date hereof,
as of the date of each acceptance by the Company of an offer for the purchase
of Notes (whether to the Agent as principal or through the Agent as agent), as
of the date of each delivery of Notes (whether to the Agent as principal or
through the Agent as agent) (the date of each such delivery to the Agent as
principal is referred to herein as a "Settlement Date"), and as of any time
that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rate or formula applicable to the Notes or similar
changes) (each of the times referenced above is referred to herein as a
"Representation Date"), as follows:
-3-
<PAGE>
(a) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission or the state securities authority of any
jurisdiction, and any request on the part of the Commission for additional
information has been complied with. No order preventing or suspending the use
of the Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the Commission
or the state securities authority of any jurisdiction. In addition, the
Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including
the filing of the most recent Annual Report on Form 10-K of the Company with
the Commission) became effective and at each Representation Date, the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations") and did not and will not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at each Representation Date,
the Prospectus and any amendments and supplements thereto did not and will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, the Company will
comply with the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by the Agent expressly for use in the Registration
Statement or the Prospectus or to that part of the Registration Statement
which constitutes the Trustees' Statement of Eligibility under the 1939 Act
(the "Form T-1").
Each preliminary prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act and the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the Prospectus
delivered to the Agent for use in connection with the offering of the Notes
will, at the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection with
the offering and sale of the Notes, the Company has complied or will comply
with the requirements of Rule 111 under the 1933 Act Regulations relating to
the payment of filing fees thereof.
-4-
<PAGE>
(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date hereof, at the date of the Prospectus, and at each
Representation Date, or during the period in which a prospectus is required to
be delivered, did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the Agent
expressly for use in the Registration Statement or the Prospectus or to that
part of the Registration Statement which constitutes the Form T-1.
(c) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement and the Prospectus are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(d) Financial Statements. The financial statements included, or
incorporated by reference, in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the financial
position of the Company and its subsidiaries at the respective dates indicated
and the consolidated statement of income, shareholders' equity and cash flows
of the Company and its subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included, or incorporated by
reference, in the Registration Statement and the Prospectus present fairly, in
accordance with GAAP, the information required to be stated therein. The
selected financial data, the summary financial information and other financial
information and data included, or incorporated by reference, in the Prospectus
present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included, or
incorporated by reference, in the Registration Statement and the Prospectus.
In addition, any pro forma financial information and the related notes thereto
included, or incorporated by reference, in the Registration Statement and the
Prospectus present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines and the guidelines of
the American Institute of Certified Public Accountants ("AICPA") with respect
to pro forma information and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. All historical
financial statements and information and all pro forma financial statements
and information required by the 1933 Act, the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations are included, or incorporated by reference,
in the Registration Statement and the Prospectus.
-5-
<PAGE>
(e) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (i) there has been no material
adverse change in the financial condition or in the earnings, assets or
business of the Company or any of its subsidiaries, whether or not arising in
the ordinary course of business, which would be material to the Company and
its subsidiaries on a consolidated basis (anything which would be material to
the Company and its subsidiaries on a consolidated basis, being hereinafter
referred to as "Material"; and such a material adverse change, a "Material
Adverse Effect"), (ii) no casualty loss or condemnation or other adverse event
with respect to the properties of the Company or any of its subsidiaries has
occurred which would have a Material Adverse Effect, (iii) there have been no
transactions or acquisitions entered into by the Company or any of its
subsidiaries which would be Material, (iv) except for regular quarterly
distributions on shares of the Company's Common Stock, without par value (the
"Common Stock"), and stock dividends relating to the Common Stock, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock, (v) with the exception of (A)
transactions in connection with the Company's Stock Purchase and Discounted
Dividend Reinvestment Plan, (B) stock dividends or stock splits relating to
the Common Stock, (C) purchases or redemptions by the Company of shares of
Common Stock, and (D) issuance of Common Stock by the Company in connection
with any acquisition by the Company of a Subsidiary (as defined in the
Indenture) that is not required to be reported on Form 8-K (whether pursuant
to Item 2 or Item 5 thereof), there has been no change in the capital stock of
the Company which would be Material and (vi) there has been no increase in the
outstanding indebtedness for borrowed money of the Company or any of its
subsidiaries which would be Material.
(f) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits thereof
which have not been so described and/or filed as required and the descriptions
thereof or references thereto are correct in all material respects and no
Material defaults exist in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any such contract or
document except as described in the Registration Statement, the Prospectus or
the documents incorporated by reference therein.
(g) Organization of the Company. The Company has been duly organized
and is validly existing as a corporation under the laws of the State of
Indiana and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under this
Agreement. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
-6-
<PAGE>
(h) Capitalization. The authorized, issued and outstanding shares of
capital stock of the Company are as set forth or incorporated by reference in
the Prospectus. All the issued and outstanding shares of Common Stock have
been duly authorized and are validly issued, fully paid and non- assessable
and have been offered and sold or exchanged in compliance with all applicable
laws (including, without limitation, federal and state securities laws). No
such shares were issued in violation of preemptive or other similar rights
arising by operation of law, under the Company's Articles of Incorporation or
By-Laws, or under any agreement to which the Company is or, at the time of
such issuance was, a party. Except for the Company's 8% Convertible
Subordinated Debentures due September 15, 2012, the rights issued pursuant to
the Company's Shareholder Rights Plan and options to purchase shares of Common
Stock held by certain executive officers of DuBois County Bank and
Workingmens/ONB Bank, there are no outstanding securities convertible into or
exchangeable for any shares of capital stock of the Company and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of capital stock of the Company.
(i) Subsidiaries. Each of the Company's subsidiaries has been duly
organized and is validly existing and in good standing under the laws of the
state of its jurisdiction of organization (or, with respect to each of the
Company's subsidiaries that is a national bank, under federal law), with the
requisite power and authority to own, lease and operate its properties, and to
conduct the business in which it is engaged or proposes to engage as described
in the Prospectus. Each such entity is duly qualified or registered as a
foreign corporation or other entity, as the case may be, to transact business
and is in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
register would not have a Material Adverse Effect. All of the issued and
outstanding capital stock of each of the Company's subsidiaries has been duly
authorized and validly issued and is fully paid and non-assessable, has been
offered, sold or exchanged in compliance with all applicable laws (including
without limitation, federal or state securities laws) and are owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (collectively, "Liens"). No shares of capital
stock or other equity interests of any Significant Subsidiary (as defined in
the Indenture) of the Company are reserved for any purpose, and there are no
outstanding securities convertible into or exchangeable for any capital stock
or other equity interests of such entities and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for shares
of such capital stock or any other securities of such entities, except as
disclosed in the Prospectus.
(j) Authorization of the Notes. The Notes have been duly authorized by
all necessary action on the part of the Company, and, when the variable terms
of the Notes have been established by the authorized committee or officers of
the Company to whom such authority has been delegated and the Notes have been
executed and authenticated in the manner provided for in the Indenture and
delivered by the Company pursuant to this Agreement and any applicable Pricing
Supplement (as hereinafter defined) against payment of the consideration
therefor, (i) the Notes will constitute valid and legally binding obligations
of
-7-
<PAGE>
the Company, enforceable against the Company in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and (ii) each registered
holder of Notes will be entitled to the benefits of the Indenture. The Notes
are or will be in the form contemplated by the Indenture. The Notes, when
issued, rank and will rank on a parity with all unsecured indebtedness (other
than subordinated indebtedness) of the Company that is outstanding on a
Representation Date or that may be incurred thereafter and senior to all
subordinated indebtedness that is outstanding on a Representation Date or that
may be incurred thereafter.
(k) Authorization of the Indenture. The Indenture has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The Indenture has been duly qualified under the 1939 Act and
conforms, in all material respects, to the descriptions thereof contained in
the Prospectus.
(l) Descriptions of the Notes. The Indenture and the Notes, as of the
date of the Prospectus, conform, and when issued and delivered in accordance
with the terms of this Agreement, the Indenture and the applicable Pricing
Supplement will conform, in all material respects to the statements relating
thereto contained in the Prospectus and will be in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement and will comply with all applicable legal requirements.
(m) Investment Grade Rating. The Notes will have an investment grade
rating from one or more nationally recognized statistical rating organizations
at each applicable Representation Date. Further, the Medium- Term Note
Program under which the Notes are issued (the "Program"), as well as the
Notes, are rated Baa1 by Moody's Investors Service, Inc. ("Moody's") and
A-minus/A-2 by Standard & Poor's Ratings Service ("S&P"), or such other
ratings as to which the Company shall have most recently notified the Agent
pursuant to Section 4(a) hereof.
(n) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(o) Absence of Defaults and Conflicts. None of the Company or any of
its subsidiaries is in violation of the provisions of its charter, by-laws or
other organizational document, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which it is a party
or by which it is bound, or to which any of its properties or assets are
subject
-8-
<PAGE>
(collectively, "Agreements and Instruments"), except for such violations or
defaults that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Agreement, the Indenture, the Notes and any
other agreement or instrument entered into or issued, or to be entered into or
issued, by the Company in connection with the transactions contemplated hereby
or thereby, and the consummation of the transactions contemplated hereby and
thereby (including the issuance and sale of the Notes and the use of the
proceeds from the sale of the Notes as described in the Prospectus under the
caption "Use of Proceeds"), and compliance by the Company with its obligations
hereunder and thereunder, do not and will not, with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any assets, properties
or operations of the Company or any of its subsidiaries pursuant to, any
Agreements and Instruments, except for such conflicts, breaches, defaults,
Repayment Events or liens, charges or encumbrances that would not result in a
Material Adverse Effect, nor will such action result in any violation of the
provisions of the Articles of Incorporation or By- Laws of the Company or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations, except for such violations that would
not have a Material Adverse Effect. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a material
portion of such indebtedness by the Company or any of its subsidiaries.
(p) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency or any other entity or person is
necessary or required for the performance by the Company of its obligations
under this Agreement or the Indenture or in connection with the transactions
contemplated under this Agreement or the Indenture, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws or under the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD").
(q) Absence of Proceedings. There is no action, suit, proceeding or
investigation before or by any court or governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries, or any of their
respective officers or directors, which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated or
incorporated by reference therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the assets, properties or operations thereof
or the consummation of the transactions contemplated by this Agreement or the
Indenture. The aggregate of all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any of
their respective assets, properties or operations is the subject which are not
described in the Registration
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Statement and the Prospectus, including ordinary routine litigation incidental
to their business, could not reasonably be expected to result in a Material
Adverse Effect.
(r) Possession of Licenses and Permits. The Company and each of its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them except for such
Governmental Licenses, the failure to obtain would not, singly or in the
aggregate, result in a Material Adverse Effect. The Company and each of its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, result in a Material Adverse Effect. All of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(s) Title to Property. The Company and its subsidiaries have good and
marketable title to all property and other assets owned by them free and clear
of Liens, except (i) as otherwise stated in the Registration Statement and the
Prospectus, or (ii) those which do not, singly or in the aggregate, Materially
(x) affect the value of such property or (y) interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries. All
leases and subleases under which the Company or any of its subsidiaries holds
properties are in full force and effect, except for such which would not have
a Material Adverse Effect.
(t) Investment Company Act. The Company is not, and upon the issuance
and sale of the Notes as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(u) Officers' Certificates. Any certificate signed by an officer of the
Company or any authorized representative of the Company and delivered to the
Agent or to counsel for the Agent in connection with an offering of the Notes
shall be deemed a representation and warranty by the Company to the Agent as
to the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
SECTION 3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Company and the Agent, the Agent, as the agent
of the Company, will use its reasonable efforts to solicit offers to purchase
the Notes upon the terms and conditions set forth herein
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and in the Prospectus. The Agent is not authorized to appoint sub-agents with
respect to Notes sold through it as agent. All Notes sold through the Agent
as agent will be sold at 100% of their principal amount unless otherwise
agreed to by the Company and the Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes through the Agent, as the agent
of the Company, commencing at any time for any period of time. As soon as
practicable after receipt of instructions from the Company, the Agent will
suspend solicitation of offers to purchase the Notes from the Company until
such time as the Company has advised the Agent that such solicitation may be
resumed.
The Company agrees to pay the Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by the Agent as
set forth in Schedule A hereto.
(b) Purchases as Principal. Notes purchased from the Company by the
Agent, individually or in a syndicate, as principal shall be made in
accordance with terms agreed upon between the Agent and the Company (which
terms, unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and be agreed upon orally, with written
confirmation prepared by the Agent and delivered to the Company). The Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Unless the context otherwise requires, references herein to "this Agreement"
shall include the applicable agreement of the Agent to purchase Notes from the
Company as principal. Each purchase of Notes, unless otherwise agreed, shall
be at a discount from the principal amount of each such Note equivalent to the
applicable commission set forth in Schedule A hereto. The Agent may engage
the services of any other broker or dealer in connection with the resale of
the Notes purchased by it as principal and may allow all or any portion of the
discount received from the Company in connection with such purchases to such
brokers and dealers. At the time of each purchase of Notes from the Company by
the Agent as principal, the Agent shall specify the requirements for the
stand-off agreement, officers' certificate, opinions of counsel and comfort
letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d) hereof.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified
in Exhibit A hereto shall be agreed upon by the Company and the Agent and
specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared in connection with each sale of Notes. Except as
may be otherwise specified in the applicable Pricing Supplement, the Notes
will be issued in denominations of U.S. $1,000 or any larger amount that is an
integral multiple of U.S. $1,000. Administrative procedures with respect to
the issuance and sale of Notes shall be agreed upon from time to time by the
Company, the Agent and the Trustee (the "Procedures"). The Agent and the
Company agree to perform, and the Company agrees to cause the Trustee to agree
to perform, their respective duties and obligations specifically provided to
be performed by them in the Procedures.
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(d) Sales Directly to Third Parties. The Company shall have the right,
in its discretion, to sell Notes directly on its own behalf to any third
party. No commission, fee or other compensation shall be paid to the Agent
for any such sale of Notes directly by the Company.
SECTION 4. Covenants of the Company.
The Company covenants with the Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agent
immediately, and confirm such notice in writing, of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any amendment or supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus (other than any document as to which notice has
been given by the Company pursuant to Section 4(b) hereof), (iii) the receipt
of any comments from the Commission with respect to the Registration Statement
or the Prospectus, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose, and (vi) any change in the rating
assigned by any nationally recognized statistical rating organization to the
Program or any debt securities of the Company or the public announcement by
any nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any debt securities of the Company, or the withdrawal by any
nationally recognized statistical rating organization of its rating of the
Program or any such debt securities. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible time.
(b) Notice of Certain Proposed Filings. The Company will give the Agent
advance notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment
to the Registration Statement (including any filing under Rule 462(b) of the
1933 Act Regulations) or any amendment or supplement to the Prospectus whether
by filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise,
and will furnish the Agent copies of any such amendment or supplement or other
documents proposed to be filed or used a reasonable time in advance of such
proposed filing or use, as the case may be.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agent and to counsel for the Agent, without
charge, as many signed and conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) as the Agent or counsel to the Agent reasonably
request. The Company will furnish to the Agent and to counsel for the Agent,
without charge, as many copies of the Prospectus (as amended or supplemented)
as the Agent or
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counsel to the Agent reasonably request so long as the Agent is required to
deliver a Prospectus in connection with sales or solicitations of offers to
purchase the Notes. The Registration Statement and each amendment thereto and
the Prospectus and any amendments or supplements thereto furnished to the
Agent or counsel to the Agent will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Preparation of Pricing Supplements. The Company will prepare a
Pricing Supplement with respect to any Notes to be sold to or through the
Agent pursuant to this Agreement, in a form previously approved by the Agent.
The Company will deliver such Pricing Supplement no later than 11:00 A.M., New
York City time, on the business day following the date of the Company's
acceptance of the offer for the purchase of such Notes and will file such
Pricing Supplement pursuant to Rule 424(b)(2) under the 1933 Act not later
than the close of business of the Commission on the second business day after
the date on which such Pricing Supplement is first used.
(e) Revisions of Prospectus - Material Changes. Except as otherwise
provided in Section 4(l) hereof, if at any time during the term of this
Agreement any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Agent or counsel for the Company,
to amend or supplement the Prospectus in order that the Prospectus not contain
an untrue statement of a material fact or not omit to state any material fact
necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
to amend the Registration Statement in order that the Registration Statement
not contain an untrue statement of a material fact or not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or if it shall be necessary, in the opinion
of either such counsel, to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company shall give immediate notice, confirmed in
writing, to the Agent to cease the solicitation of offers to purchase the
Notes in its capacity as Agent and to cease sales of any Notes the Agent may
then own as principal, and the Company will promptly prepare and file such
amendment to the Registration Statement or supplement to the Prospectus,
subject to Section 4(b) hereof, whether by filing documents pursuant to the
1934 Act or the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements and the Company will furnish to the
Agent and counsel for the Agent, without charge, such number of copies of such
amendment or supplement as the Agent and counsel for the Agent may reasonably
request. In addition, the Company will comply with the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of each offering of Notes.
(f) Prospectus Revisions - Periodic Financial Information. Except as
otherwise provided in Section 4(l) hereof, on or prior to the date on which
there shall be released to the general public interim financial statement
information related to the Company with respect to
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each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall
furnish such information to the Agent, confirmed in writing, and shall cause
the Prospectus to be amended or supplemented to include or incorporate by
reference financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding thereof or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(g) Prospectus Revisions - Audited Financial Information. Except as
otherwise provided in Section 4(l) hereof, on or prior to the date on which
there shall be released to the general public financial information included
in or derived from the audited financial statements of the Company for the
preceding fiscal year, the Company shall furnish such information to the
Agent, confirmed in writing, and shall cause the Registration Statement and
the Prospectus to be amended or supplemented, as the case may be, whether by
the filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise,
to include or incorporate by reference such audited financial statements and
the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph
of Section 11(a) of the 1933 Act (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering each twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of
the Registration Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Agent, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agent may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The Company
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agent of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(j) Reporting Requirements. During the term of this Agreement, the
Company will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or
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<PAGE>
15 of the 1934 Act within the time periods prescribed by the 1934 Act and the
1934 Act Regulations.
(k) Stand-Off Agreement. If required pursuant to the terms of any
agreement entered into between the Agent acting as principal and the Company,
between the date of the agreement to purchase such Notes from the Company and
the Settlement Date with respect to such purchase, the Company will not,
without the prior written consent of the Agent, offer or sell, issue, grant
any option for the sale of, or enter into any agreement to sell, or otherwise
dispose of, any debt securities of the Company (other than the Notes that are
to be sold pursuant to such agreement and commercial paper in the ordinary
course of business). This agreement of the Company shall herein be referred
to as the "Stand-Off Agreement."
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsection (e), (f) or (g) of this
Section during any period from the time (i) the Agent shall have suspended
solicitation of offers to purchase the Notes in its capacity as Agent pursuant
to a request from the Company and (ii) the Agent shall not then hold any Notes
purchased as principal pursuant hereto, until the time the Company shall
determine that solicitation of offers to purchase the Notes should be resumed
or the Agent shall subsequently purchase Notes from the Company as principal.
(m) Use of Proceeds. The Company will use the net proceeds received by
it from the issuance and sale of the Notes in the manner specified in the
Prospectus.
(n) Ratings. The Company will take all reasonable action necessary to
enable one or more of S&P, Moody's or any other nationally recognized
statistical rating organization selected by the Agent to provide their
respective credit ratings of the Program as specified in Section (2)(m)
hereof.
SECTION 5. Conditions of Agent's Obligations.
The obligations of the Agent to solicit offers to purchase the Notes as
the Agent of the Company and to purchase Notes as principal, and the
obligations of any purchasers of the Notes sold through the Agent as agent,
will be subject to the accuracy of the representations and warranties of the
Company herein contained and to the accuracy of the statements of the officers
of the Company made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all its covenants,
agreements and other obligations herein contained and to the following
additional conditions precedent:
(a) Effectiveness of Registration Statement. The Registration Statement
(including any Rule 462(b) Registration Statement) has become effective under
the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act; no
proceedings for that purpose shall have been instituted or shall be pending or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Agent; and no state securities authority of any
jurisdiction shall have suspended the
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qualification or registration of the Notes for offering or sale in such
jurisdiction and no proceedings for that purpose shall have been instituted or
shall be pending or threatened.
(b) Legal Opinions. On the date hereof, the Agent shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to counsel for the Agent:
(i) Opinion of Counsel for the Company. On the date hereof, the
Agent shall have received the favorable opinion, dated as of the date
hereof, of Krieg DeVault Alexander & Capehart, counsel for the Company,
to the effect set forth in Exhibit B hereto, and otherwise in form and
substance acceptable to the Agent.
(ii) Opinion of Counsel for the Agent. On the date hereof, the
Agent shall have received the favorable opinion, dated as of the date
hereof, of Baker & Daniels, counsel for the Agent, with respect to the
incorporation of the Company, the validity of the Notes, the Registration
Statement, the Prospectus and such other related matters as the Agent may
reasonably request.
(c) Officer's Certificate. On the date hereof, the Agent shall have
received a certificate of the Chairman or President and the Chief Financial
Officer of the Company, dated as of the date hereof, to the effect that (i)
since the respective dates as of which information is given in the Prospectus
or since the date of any agreement by the Agent to purchase Notes as
principal, or since the date of any applicable Pricing Supplement there has
not been any material adverse change in the financial condition, or in the
earnings, assets or business of the Company and its subsidiaries on a
consolidated basis, whether or not arising in the ordinary course of business,
(ii) the representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has
performed or complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such certificate,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to the best of such officer's knowledge, are
threatened by the Commission. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first provided to the Agent for
use in confirming sales of the Notes.
(d) Comfort Letter of Arthur Andersen LLP. On the date hereof, and on
each Settlement Date (but, in any event, not more frequently than once during
each fiscal quarter of the Company unless otherwise required pursuant to
clause (i) or clause (ii) of Section 7(d) hereof) , the Agent shall have
received a letter from Arthur Andersen LLP, dated as of the date hereof or the
applicable Settlement Date, as the case may be, and in form and substance
reasonably satisfactory to the Agent, to the effect set forth in Exhibit C
hereto.
(e) Ratings. At the Settlement Date and at any relevant Representation
Date, the Notes shall have at least the ratings as specified in Section
(2)(m). Since the time of acceptance by the Company of any offer to purchase
a Note, there shall not have occurred a
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downgrading in the rating assigned to the Program or any other debt securities
of the Company by any such rating organization, and no such rating
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Program or the
Company's other debt securities.
(f) Additional Documents. On the date hereof and on each Settlement
Date, counsel to the Agent shall have been furnished with such documents and
opinions as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agent and to
counsel to the Agent.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Agent by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive the delivery set forth in Section 11
hereof, the provisions relating to governing law set forth in Section 15 and
the provisions relating to parties set forth in Section 14 hereof shall remain
in effect.
SECTION 6. Delivery of and Payment for Notes Sold Through the Agent.
Delivery of Notes sold through the Agent as agent shall be made by the
Company to the Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
such Note to the Company and, if the Agent has theretofore paid the Company
for such Note, the Company will promptly return such funds to the Agent. If
such failure occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will reimburse the Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company further covenants and agrees with the Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes (whether to the Agent as
principal or through the Agent as agent), and each delivery of Notes (whether
to the Agent as principal or through the Agent as agent), shall be deemed to
be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore
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delivered to the Agent pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to the Agent or to the purchaser or its agent, as the case may be, of
the Notes relating to such acceptance or sale, as the case may be, as though
made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by a Pricing Supplement or an amendment or supplement providing
solely for a change in the interest rate or formula applicable to the Notes or
similar changes, and other than by an amendment or supplement which relates
exclusively to the issuance of securities other than the Notes), (ii) there is
filed with the Commission any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K, unless the Agent shall
otherwise specify), (iii) (if required in connection with the purchase of
Notes by the Agent as principal) the Company sells Notes to the Agent as
principal or (iv) the Company issues and sells Notes in a form not previously
certified to the Agent by the Company, the Company shall (unless the Agent
shall otherwise specify) furnish or cause to be furnished to the Agent
forthwith a certificate dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form satisfactory to the Agent to
the effect that the statements contained in the certificate referred to in
Section 5(c) hereof which were last furnished to the Agent are true and
correct at the time of such amendment, supplement, filing or sale, as the case
may be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in Section 5(c)
hereof, modified as necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
certificate (it being understood that, in the case of clause (iii) above, any
such certificate shall also include a certification that there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as a whole since the date of the agreement by the
Agent to purchase Notes from the Company as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by a Pricing Supplement or an amendment or supplement providing
solely for a change in the interest rate or formula applicable to the Notes or
similar changes or solely for the inclusion of additional financial
information, and other than by an amendment or supplement which relates
exclusively to the issuance of securities other than the Notes), (ii) there is
filed with the Commission any document incorporated by reference into the
Prospectus (other than any Current Report on form 8-K, unless the Agent shall
otherwise specify), (iii) (if required in connection with the purchase of
Notes by the Agent as principal) the Company sells Notes to the Agent as
principal, or (iv) the Company issues and sells Notes in a form not previously
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certified to the Agent by the Company, the Company shall (unless the Agent
shall otherwise specify) furnish or cause to be furnished forthwith to the
Agent and to counsel to the Agent the written opinion Krieg DeVault Alexander
& Capehart, counsel for the Company, dated the date of filing with the
Commission of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form and substance
satisfactory to the Agent, of the same tenor as the opinions referred to in
Exhibit B hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinions or, in lieu of such opinions, counsel last
furnishing such opinions to the Agent shall furnish the Agent with a letter
substantially to the effect that the Agent may rely on such last opinion to
the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement which relates exclusively to the issuance of securities other than
the Notes), (ii) there is filed with the Commission any document incorporated
by reference into the Prospectus which contains additional financial
information (other than any Current Report on Form 8-K relating exclusively to
supplemental information or earnings releases, each in connection with
quarterly or annual financial results of the Company or either of the
Company), or (iii) (if required in connection with the purchase of Notes by
the Agent as principal) the Company sells Notes to the Agent as principal, the
Company shall (unless the Agent shall otherwise specify) cause Arthur Andersen
LLP forthwith to furnish to the Agent a letter, dated the date of
effectiveness of such amendment, supplement or document with the Commission,
or the date of such sale, as the case may be, in form satisfactory to the
Agent, of the same tenor as the letter referred to in Section 5(d) hereof but
modified to relate to the Registration Statement and Prospectus as amended and
supplemented to the date of such letter, and with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company or the Company.
(e) Exception to Certain Requirements of Section 7. Notwithstanding
anything else contained herein to the contrary, the Company shall not be
required to furnish, or to cause to be furnished, the certificates, legal
opinions and comfort letters contemplated by Sections 7(b)(ii), 7(c)(ii) or
7(d)(ii) hereof so long as the Agent is not, at the time that such
certificates, legal opinions or comfort letters are required to be delivered,
(i) soliciting offers to purchase Notes in its capacity as Agent hereunder or
(ii) holding any Notes purchased as principal pursuant hereto; provided,
however, that the Agent shall not be required to solicit offers to purchase
Notes hereunder or to purchase or hold Notes as principal pursuant hereto
until the Company shall have provided the Agent with the certificates, legal
opinions and comfort letters required by Sections 7(b), 7(c) and 7(d) hereof;
and provided further, that the Company shall, in any event, furnish or cause
to be furnished such certificates, legal opinions
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and comfort letters upon the filing with the Commission of each Annual Report
on Form 10-K of the Company.
SECTION 8. Indemnification.
(a) Indemnification of the Agent. The Company agrees to indemnify and
hold harmless the Agent and each person, if any, who controls the Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information filed
with the Commission pursuant to Rule 430A or Rule 434 of the 1933 Act
Regulations (the "Rule 430A Information and the Rule 434 Information")
deemed to be a part thereof, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
an untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading:
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever which, in each such case, is based upon any such untrue
statement or omission, or any such alleged untrue statement or omission;
provided, that (subject to Section 8(d) below) any such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Agent,
which counsel shall be reasonably acceptable to Company), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever which, in each such
case, is based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
the Agent expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
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Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Company, Directors and Officers. The Agent
agrees to indemnify and hold harmless the Company, each of the Company's
directors, each of the Company's officers who signed the Registration
Statement (or signs any amendment thereto), and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Agent expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
8(a) above, counsel to the indemnified parties shall be selected by the Agent
and shall be reasonably acceptable to the Company, and, in the case of parties
indemnified pursuant to Section 8(b) hereof, counsel to the indemnified
parties shall be selected by the Company and shall be reasonably acceptable to
the Agent. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or Section 9 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
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(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel in accordance with the
provisions hereof, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 8(a)(ii) effected without
its written consent if (i) such settlement is entered into in good faith by
the indemnified party more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
SECTION 9. Contribution.
If the indemnification provided for in Section 8 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and
the Agent, on the other hand, from the offering of the Notes that were the
subject of the claim for indemnification or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and the
Agent, on the other hand, in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Agent, on the other hand, in connection with the offering of the Notes that
were the subject of the claim for indemnification shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of
such Notes (before deducting expenses) received by the Company and the total
discount or commission received by the Agent, in each case as set forth on the
cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet, bear to the aggregate initial public offering price of such
Notes as set forth on such cover.
The relative fault of the Company, on the one hand, and the Agent, on the
other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Agent and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Agent agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to
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<PAGE>
above in this Section 9. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 9 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 9, the Agent shall not be
required to contribute any amount in excess of the amount by which the total
discount or commission received by the Agent in connection with the offering
of Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which the Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9, each person, if any, who controls the
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Agent, and each
director of the Company, each officer of the Company who signed the
Registration Statement (or signs any amendment thereto), and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation, filing, printing and delivery of the Registration
Statement and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing, printing, delivery and reproduction of this
Agreement;
(c) the preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form and the cost of obtaining CUSIP or other
identification numbers for the Notes;
(d) the fees and disbursements of the Company's accountants and counsel,
of the Trustee and its counsel, and of any calculation agent;
(e) the reasonable fees and disbursements of counsel to the Agent
incurred in connection with the establishment of the Program (including,
without limitation, the
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preparation of the Registration Statement, the forms of the Notes, the
Indenture and this Agreement) and incurred from time to time in connection
with the transactions contemplated hereby up to an aggregate amount of
$55,000;
(f) the qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees
and the reasonable fees and disbursements of counsel in connection therewith
and in connection with the preparation of any Blue Sky or Legal Investment
Survey;
(g) the printing and delivery to the Agent in quantities as hereinabove
stated of copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements thereto, and the delivery
by the Agent of the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Notes;
(h) the preparation, reproducing and delivery to the Agent of copies of
the Indenture and all supplements and amendments thereto;
(i) any fees charged by S&P, Moody's and any other nationally recognized
statistical rating organization for the rating of the Program and the Notes;
(j) the fees and expenses incurred in connection with any listing by the
Company of Notes on a securities exchange;
(k) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agent in connection with, the review, if any,
by the NASD; and
(l) any advertising and other out-of-pocket expenses of the Agent
incurred with the written approval of the Company in its discretion.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, or in certificates of the Company or authorized representatives of
the Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Agent or any controlling person of the Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement hereunder by the Agent to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or the Agent,
upon the giving of 30 days' written notice of such termination to the other
party hereto; provided, however, that the Agent may immediately terminate this
Agreement if, despite the Agent's reasonable objection, the
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Company files with the Commission any document, notice of which filing is
required to be given to the Agent pursuant to Section 4(b) hereof.
(b) Termination of Agreement to Purchase Notes as Principal. The
Agent may terminate any agreement hereunder by the Agent to purchase Notes as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has been, since the date of such
agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there shall have
occurred any material adverse change in the financial markets in the United
States or any outbreak of hostilities or escalation thereof or other national
or international calamity or crisis the effect of which is such as to make it,
in the judgment of the Agent, impracticable to market the Notes or enforce
contracts for the sale of the Notes, or (iii) if trading in any Notes of the
Company has been suspended or limited by the Commission or a national
securities exchange, or if trading generally on either the Nasdaq National
Market System or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for Notes have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if a banking
moratorium shall have been declared by either the United States, New York,
Indiana, Illinois or Kentucky or (iv) if the rating assigned by any nationally
recognized statistical rating organization to the Program, any debt securities
of the Company or the Company's other Notes as of the date of such agreement
shall have been lowered or withdrawn since that date or if any such rating
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Program or any
debt securities of the Company or the Company's other Notes, or (v) if there
shall have come to the attention of the Agent any facts that would reasonably
cause it to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Notes, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading. As used in this Section 12(b), the term
"Prospectus" means the Prospectus in the form first provided to the Agent for
use in confirming sales of the related Notes.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agent shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (x) the Agent shall
own any Notes purchased by it as principal with the intention of reselling
them or (y) an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser or its agent of the Note or
Notes relating thereto has not occurred, the covenants set forth in Sections 4
and 7 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be, and the Company shall be entitled to receive
the proceeds of the sale, if any, of all Notes purchased or to be purchased by
the Agent as principal or as to which the Agent has solicited the offer to
purchase that the Company has accepted, but as to which the date fixed for
settlement has not
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<PAGE>
occured, and (iii) the covenant set forth in section 4(b) hereof, the
provisions of Section 10 hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15
hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein or in the Procedures, all notices
required under the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram, and any such
notice shall be effective when received at the address specified below.
(a) If to the Company, to:
Old National Bancorp
420 Main Street
Evansville, Indiana 47708
Attention: Jeffrey L. Knight,
Corporate Secretary and General Counsel
Telecopy No.: (812) 464-1567
(b) If to the Agent, to:
NatCity Investments, Inc.
251 North Illinois Street, Suite 500
Indianapolis, Indiana 46204
Attention: Robert C. Campbell
Telecopy No.: (317) 686-3570
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Parties.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes shall be deemed to be a successor by reason merely of
such purchase.
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SECTION 15. GOVERNING LAW.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF INDIANA
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
SECTION 16. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
If the foregoing is in accordance with the Agent's understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agent and the Company in accordance with its terms.
Very truly yours,
OLD NATIONAL BANCORP
By _________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
NATCITY INVESTMENTS, INC.
By _________________________________
Authorized Representative
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SCHEDULE A
As compensation for the services of the Agent hereunder, the Company
shall pay the Agent, on a discount basis, a commission for the sale of each
Note equal to the principal amount* of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150
From 18 months to less than 2 years .200
From 2 years to less than 3 years .250
From 3 years to less than 4 years .350
From 4 years to less than 5 years .450
From 5 years to less than 6 years .500
From 6 years to less than 7 years .550
From 7 years to less than 10 years .600
From 10 years to less than 15 years .625
From 15 years to less than 20 years .675
From 20 years to 30 years .750
Greater than 30 years **
- -------------------
- - With respect to zero-coupon or discount Notes, the principal amount
upon which the Agent's commission shall be based shall be the initial
issue price of such Notes.
** As agreed to by the Company and the Agent at the time of sale.
Exhibit 4.1
==========================================================================
OLD NATIONAL BANCORP
AND
BANK ONE, NA, TRUSTEE
-------------------------------
Indenture
-------------------------------
Dated as of July , 1997
(Debt Securities)
==========================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 3
Certificate of a Firm of Independent Public Accountants . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . . . . . 3
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollars or $ . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . 5
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . 5
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
mandatory sinking fund payment . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
New York Facility . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 6
optional sinking fund payment . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 8
Security or Securities . . . . . . . . . . . . . . . . . . . . 8
Security Register and Security Registrar . . . . . . . . . . . 8
Significant Subsidiary . . . . . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, etc., to Trustee and Company . . . . . 14
SECTION 106. Notice to Holders of Securities; Waiver . . . . 14
SECTION 107. Language of Notices, etc. . . . . . . . . . . 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 and Saving Clause . . . . . . . . 15
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . 16
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . 16
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SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . 16
SECTION 115. Certificate of Firm of Independent Public
Accountants Conclusive . . . . . . . . . . 16
SECTION 116. No Recourse Against Others . . . . . . . . . . 17
ARTICLE TWO
SECURITY FORMS
--------------
SECTION 201. Forms of Securities . . . . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 18
SECTION 203. Securities in Global Form . . . . . . . . . . . 18
ARTICLE THREE
THE SECURITIES
--------------
SECTION 301. Amount Unlimited; Issuable in Series . . . . . 18
SECTION 302. Currency; Denominations . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . 22
SECTION 304. Temporary Securities . . . . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . 28
SECTION 307. Payment of Interest and Certain Additional
Amounts; Rights Preserved . . . . . . . . . 29
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . 31
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . 32
SECTION 310. Computation of Interest . . . . . . . . . . . . 32
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
--------------------------
SECTION 401. Satisfaction and Discharge of Indenture . . . . 32
SECTION 402. Application of Trust Money . . . . . . . . . . 34
ARTICLE FIVE
REMEDIES
--------
SECTION 501. Events of Default . . . . . . . . . . . . . . . 35
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . 37
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . 38
SECTION 504. Trustee May File Proofs of Claim . . . . . . . 39
SECTION 505. Trustee May Enforce Claims without Possession of
Securities or Coupons . . . . . . . . . . 40
SECTION 506. Application of Money Collected . . . . . . . . 40
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . 41
SECTION 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and
Additional Amounts . . . . . . . . . . . . 41
SECTION 509. Restoration of Rights and Remedies . . . . . . 42
SECTION 510. Rights and Remedies Cumulative . . . . . . . . 42
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . 42
SECTION 512. Control by Holders of Securities . . . . . . . 42
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . 43
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . 43
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . 44
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ARTICLE SIX
THE TRUSTEE
-----------
SECTION 601. Certain Duties and Responsibilities . . . . . . 44
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . 45
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . 46
SECTION 604. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . 47
SECTION 605. May Hold Securities . . . . . . . . . . . . . . 47
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . 47
SECTION 607. Compensation and Reimbursement . . . . . . . . 48
SECTION 608. Disqualifications; Conflicting Interests . . . 48
SECTION 609. Corporate Trustee Required, Eligibility . . . . 48
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . 49
SECTION 611. Acceptance of Appointment by Successor . . . . 50
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . 52
SECTION 613. Appointment of Authenticating Agent . . . . . . 52
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
------------------------------------------------
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders of Registered Securities . . . . 54
SECTION 702. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . 55
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . 55
SECTION 704. Reports by Company . . . . . . . . . . . . . . 55
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<PAGE>
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
-----------------------------------------
SECTION 801. Consolidations and Mergers of Company and Sales
and Conveyances Permitted Subject to Certain
Conditions . . . . . . . . . . . . . . . . 56
SECTION 802. Rights and Duties of Successor Corporation . . 57
SECTION 803. Officers' Certificate and Opinion of Counsel . 57
ARTICLE NINE
SUPPLEMENTAL INDENTURES
-----------------------
SECTION 901. Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . . . . 58
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . 61
SECTION 903. Execution of Supplemental Indentures . . . . . 63
SECTION 904. Effect of Supplemental Indentures . . . . . . . 63
SECTION 905. Conformity with Trust Indenture Act . . . . . . 63
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . 63
ARTICLE TEN
COVENANTS
---------
SECTION 1001. Payment of Principal and any Premium, Interest
and Additional Amounts . . . . . . . . . . 63
SECTION 1002. Maintenance of Office or Agency . . . . . . . . 64
SECTION 1003. Money for Securities Payments to be Held in
Trust . . . . . . . . . . . . . . . . . . . 65
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . 66
SECTION 1005. Statement as to Compliance; Notice of Certain
Defaults . . . . . . . . . . . . . . . . . 67
SECTION 1006. Corporate Existence . . . . . . . . . . . . . . 67
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<PAGE>
SECTION 1007. Limitation on Liens . . . . . . . . . . . . . . 68
SECTION 1008. Limitation on Sale of Stock . . . . . . . . . . 68
SECTION 1009. Waiver of Certain Covenants . . . . . . . . . . 69
SECTION 1010. Defeasance of Certain Obligations . . . . . . . 69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
------------------------
SECTION 1101. Applicability of Article . . . . . . . . . . . 71
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . 71
SECTION 1103. Selection by Trustee of Securities to be
Redeemed . . . . . . . . . . . . . . . . . 71
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . 72
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . 73
SECTION 1106. Securities Payable on Redemption Date . . . . . 73
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . 74
ARTICLE TWELVE
SINKING FUNDS
-------------
SECTION 1201. Applicability of Article . . . . . . . . . . . 75
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . 75
SECTION 1203. Redemption of Securities for Sinking Fund . . . 75
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
----------------------------------
SECTION 1301. Applicability of Article . . . . . . . . . . . 76
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<PAGE>
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
---------------------------------
SECTION 1401. Purposes for Which Meetings May Be Called . . . 76
SECTION 1402. Call, Notice and Place of Meetings . . . . . . 77
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . 77
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . 77
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . 78
SECTION 1406. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . 79
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<PAGE>
THIS INDENTURE, dated as of July 23, 1997 between OLD NATIONAL BANCORP,
an Indiana corporation (the "Company"), having its principal office at 420
Main Street, Evansville, Indiana 47708 and Bank One, NA, a national banking
association, as Trustee (the "Trustee"), having its corporate trust office at
100 East Broad Street, 8th Floor, Columbus, Ohio 43215.
W I T N E S S E T H:
WHEREAS, the Company deems it desirable to issue from time to time debt
securities (the "Securities") evidencing its unsecured and unsubordinated
indebtedness and has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Securities, unlimited as to
principal amount, to bear such rates of interest, if any, 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; and
WHEREAS, all things necessary to make this Indenture a valid agreement,
in accordance with its terms, have been done; and
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act (as hereinafter defined) and the rules and regulations of the
Commission (as hereinafter defined) promulgated thereunder that are required
to be part of this Indenture and, to the extent applicable, shall be governed
by such provisions.
NOW, THEREFORE:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as hereinafter defined) thereof, the Company and
the Trustee mutually covenant and agree, for the equal and proportionate
benefit of all Holders from time to time of the Securities or of any series
thereof, 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 in or pursuant to this Indenture or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE>
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted
in the United States at the date of such computation;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(e) the term "day," unless designated as a "Business Day," means a
calendar day.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts that are required
by the Securities of a particular series or by or pursuant to a
supplemental indenture, Board Resolution or other instrument authorizing
such series of Securities, under the circumstances specified therein, to
be paid by the Company in respect of certain taxes, duties, assessments
or other governmental charges imposed on certain Holders 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 meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 613 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 Saturdays,
Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of
such place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the
same or in different Authorized Newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
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<PAGE>
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of one or more resolutions 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, delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the
Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in that Place of Payment
or such other location are authorized or obligated by law or executive
order to close except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by an independent public accountant or a firm of
independent public accountants who may be the independent public
accountants regularly retained by the Company or who may be other
independent public accountants. Such accountant or firm shall be
entitled to rely upon an Opinion of Counsel as to the interpretation of
any legal matters relating to such certificate.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or a written order signed in the name of the Company by the
Chairman, the President a Senior Vice President, the Controller, the
Treasurer or the Secretary of the Company, delivered to the Trustee.
"Consolidated Net Worth" means consolidated assets minus
consolidated liabilities determined in accordance with generally accepted
accounting principles.
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<PAGE>
"Corporate Trust Office" means the office of the Trustee in the City
of Columbus, Ohio at which, at any particular time, its corporate trust
business shall be principally administered, which office on the date of
execution of this Indenture is located at Bank One, NA, 100 East Broad
Street, 8th Floor, Columbus, Ohio 43215.
"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.
"Depository" has the meaning specified with respect to such term
under the definition of "U.S. Depository."
"Dollars" or "$" or any similar reference shall mean the coin or
currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts, except as may
otherwise be provided in the form of Securities of any particular series
pursuant to the provisions of this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations," with respect to any Security, means (i)
direct obligations of the Unites States of America, in each case where
the timely payment or payments thereunder are supported by the full faith
and credit of the United States of America or (ii) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a
full faith and credit obligation by the United States of America, and
which, in the case of (i) or (ii), are not callable or redeemable at the
option of the issuer or issuers thereof.
"Holder" means, in the case of a Registered Security, the Person in
whose name the Security is registered in the Security Register and, in
the case of a Bearer Security (or any temporary global Security), the
bearer thereof, and, in the case of any coupon, the bearer thereof.
"Indebtedness" means all obligations which in accordance with
generally accepted accounting principles would be classified upon a
balance sheet as liabilities, including without limitation by the
enumeration thereof, obligations arising through direct or indirect
guarantees (including agreements, contingent or otherwise, to purchase
Indebtedness or to purchase property or services for the primary purpose
of enabling the payment of Indebtedness or assuring the owner of
Indebtedness against loss) or through agreements, contingent or
otherwise, to supply or advance
-4-
<PAGE>
funds for the payment or purchase of Indebtedness of others; provided,
however, that in determining Indebtedness of any Person, there shall not
be included rental obligations under any lease of such Person, whether or
not such rental obligations would, under generally accepted accounting
principles, be required to be shown on the balance sheet of such Person
as a liability item.
"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 shall include the terms of any particular series of
Securities established as contemplated by Section 301.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity, and, when used with respect to a
Security which provides for the payment of Additional Amounts pursuant to
Section 1004, includes such Additional Amounts.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance, except for any mortgage, pledge, lien or security interest
granted by the Company or any Subsidiary to any Federal Home Loan Bank.
"mandatory sinking fund payment" has the meaning specified in
Section 1201.
"Maturity," when used 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, and includes the
Redemption Date.
"New York Facility" means the facility of the Trustee located in The
City of New York at which Securities may be presented or surrendered for
payment or registration of transfer or exchange and where notices and
demands to or upon the Company in respect of Securities and this
Indenture may be served, either pursuant to Section 1002 or as so
specified pursuant to Section 301. The New York Facility
-5-
<PAGE>
of Bank One, NA, as of the date of execution of this Indenture is located
at 14 Wall Street, 8th Floor, Suite 4607, New York, New York 10002.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Senior Vice President, and by the Treasurer or the
Secretary, of the Company which certificate complies with the
requirements, if applicable, of Section 314(e) of the Trust Indenture Act
and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who is
(except as otherwise expressly provided in this Indenture) an employee of
or counsel for the Company, or other counsel acceptable to the Trustee,
which opinion complies with the requirements, if applicable, of Section
314(e) of the Trust Indenture Act.
"optional sinking fund payment" has the meaning specified in Section
1201.
"Original Issue Discount Security" means any Security issued
pursuant to this Indenture which provides for an amount less than the
principal amount thereof to be due and payable upon acceleration thereof
pursuant to Section 502.
"Outstanding," when used with respect to any Securities, means, as
of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) any such Security theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) any such Security, or portion thereof, for whose payment
or redemption money and/or Government Obligations in the necessary
amount has been theretofore deposited pursuant hereto 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 thereto appertaining, 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
(c) any such Security that has 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 Security in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Security
is held by a bona fide purchaser in whose hands such Security is a
valid and binding obligation of the Company;
-6-
<PAGE>
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 whether a quorum is present at a meeting of Holders of
Securities, (i) the principal amount of an Original Issue Discount
Security that shall be counted in making such determination and that
shall be deemed to be Outstanding for such purposes shall be equal to the
amount of the principal thereof that would be due and payable pursuant to
the terms of such Original Issue Discount Security as of the date of such
determination upon acceleration thereof pursuant to Section 502, (ii) the
principal amount of an Indexed Security that shall be counted in making
such determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the principal face amount of such Indexed
Security at original issuance, 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 relying upon any such request, demand, authorization,
direction, notice, consent or waiver, or upon any such determination as
to the presence of a quorum, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned that 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 coupons
appertaining thereto or any Affiliate of the Company or such other
obligor.
"Paying Agent" means the Company or any Person authorized by the
Company to pay the principal of and any premium or interest on, or any
Additional Amounts with respect to, any Security or any coupon
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of
Section 1002, the principal of, or any premium or interest on, or any
Additional Amounts with respect to, the Securities of that series are
payable as specified as contemplated by Section 301.
"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 mutilated, destroyed, lost or stolen
Security or a Security to which a mutilated,
-7-
<PAGE>
destroyed, lost or stolen coupon appertains shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Security or the
Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date," when used 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," when used 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 this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date,
if any, specified for that purpose as contemplated by Section 301,
whether or not a Business Day.
"Responsible Officer," when used with respect to the Trustee, means
any officer of the Trustee assigned by it to administer corporate trust
matters.
"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 any such
Person, shall 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.
"Significant Subsidiary" means, as of any date of determination
hereunder (the "Determination Date"), any Subsidiary in existence on the
date of execution of this Indenture or established or acquired after the
date of execution of this Indenture in respect of which the total assets,
as shown on such Subsidiary's balance sheet at the end of a fiscal
quarter immediately preceding the Determination Date, prepared in
accordance with generally accepted accounting principles, shall equal or
exceed 25% of the total assets of the Company as shown on the Company's
consolidated balance sheet at the end of such fiscal quarter, prepared in
accordance with generally accepted accounting principles.
-8-
<PAGE>
"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or any premium or interest thereon or
any Additional Amounts with respect thereto, means the fixed date on
which the principal of such Security or such installment of principal or
premium or interest is or such Additional Amounts are due and payable,
determined as contemplated by Section 301.
"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 total voting power
of shares of stock or other equity interests having general voting power
under ordinary circumstances (without regard to the occurrence of any
contingency) and entitled to vote in the election of directors, managers
or trustees of such corporation. "Wholly-owned," when used with reference
to a Subsidiary, means a Subsidiary of which all of the outstanding
capital stock (except directors' qualifying shares) is owned by the
Company and/or one or more wholly-owned Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such Trust Indenture Act or
provision, as the case may be, as amended or replaced from time to time
or as supplemented from time to time by rules or regulations adopted by
the Commission under or in furtherance of the purposes of such Trust
Indenture Act or provision, as the case may be.
"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 or include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with
respect to the Securities of that series.
"United States," except as otherwise provided in or pursuant to this
Indenture, means the United States of America (including the States
thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or pursuant
to this Indenture, 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
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<PAGE>
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 or Depository by the Company in
or pursuant to this Indenture, which Person must be, to the extent
required by applicable law or regulation, a clearing agency registered
under the Securities Exchange Act of 1934, as amended, and, if so
provided 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.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, 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, provided that in the
case of any such application or request as to which the furnishing of such
documents or either 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 shall include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) 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;
(c) 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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<PAGE>
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 of counsel or
Opinion of Counsel or representations by counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate,
opinion or representations with respect to matters upon which his certificate
or opinion is based are erroneous. Any such certificate of counsel or Opinion
of Counsel or representations by counsel may be based, insofar as it relates
to factual matters, upon a certificate, 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, 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 or pursuant to this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. If, but only if,
Securities of a series are issuable as Bearer Securities in whole or in
part, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to 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 or so voting at any such meeting. Proof of
execution of
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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 601) 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 provided in or pursuant to this Indenture, a Holder, including
a 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 or pursuant to this Indenture to be made, given or taken by
Holders, and a 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 Depository's standing instructions and
customary practices.
The Trustee may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any global Security
held by a Depository entitled under the procedures of such 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 or pursuant to 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 by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities and the principal amount
and serial numbers of Registered Securities held by any Person, and the
date of holding the same, shall be proved by the Security Register.
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(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary reasonably acceptable to the Company, wherever situated, if
such certificate shall be deemed by the Company and 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 Company and the Trustee to
be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (i) another certificate
or affidavit bearing a later date issued in respect of the same Bearer
Security is produced, or (ii) such Bearer Security is produced to the
Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer
Security is no longer Outstanding. The ownership, principal amount and
serial numbers of Bearer Securities held by any Person, and the date of
holding the same, may also be proved in any other manner that the Company
and the Trustee deem sufficient.
(e) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, 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 action 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 action, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Registered Securities on such
record date 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 of 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, omitted or suffered to be
done by the Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
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SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(a) 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
(b) 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, by United States first-class mail, postage
prepaid, to the Company addressed to the attention of its Secretary at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to the provisions
of this Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(a) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed by United States
first-class mail, 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
(b) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New
York and in such other city or cities, if any, as may be specified in
such Securities and, if the Securities of such series 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 the second such
publication to be 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 that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided.
In 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 to Holders of
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Registered Securities 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 the 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 to Holders of Registered Securities given as provided herein.
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 of Securities 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, etc.
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 a provision
of the Trust Indenture Act that is required to be a part of and govern this
Indenture, such required provision 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 interpretation or 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, and all rights of the
Company hereunder shall inure to the benefit of such successors and assigns.
SECTION 111. Separability and Saving Clauses.
(a) In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, either wholly or
partially, the validity,
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legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
(b) No provision of this Indenture or of any Security or coupon
shall require the payment or permit the collection of interest or any
Additional Amounts in excess of the maximum which is not prohibited by
law. If any such excess interest is provided for herein or in any
Security or coupon, which shall be adjudicated to be so provided for,
then the Company shall not be obligated to pay such interest or
Additional Amounts in excess of the maximum not prohibited by law until
such time, if any, as it shall become legal to do so.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in any Security or coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their respective
successors and assigns hereunder, and the Holders of Securities or coupons,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons, including the validity
thereof, shall be governed by and construed in accordance with the laws of the
State of Indiana.
SECTION 114. Legal Holidays.
In any case where any Maturity or Stated Maturity of any Security, or any
installment of principal thereof or any premium or interest thereon or any
Additional Amounts with respect thereto, shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture
or the Securities or coupons other than a provision in the Securities or
coupons of any series which specifically states that such provision shall
apply in lieu of this Section) payment of principal or any premium or interest
or Additional Amounts with respect to such Security 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 at the
Maturity or Stated Maturity, and no interest shall accrue on the amount so
payable for the period from and after such Maturity or Stated Maturity, as the
case may be, to such next succeeding Business Day.
SECTION 115. Certificate of Firm of Independent Public Accountants
Conclusive.
A Certificate of a Firm of Independent Public Accountants shall be
conclusive evidence of the Consolidated Net Worth of the Company as of the
date of any determination. Notwithstanding the foregoing, the Trustee shall
be under no duty to require that it be furnished with a Certificate of a Firm
of Independent Public Accountants either annually or at any other periodic
interval or in any event unless evidence of the Consolidated Net Worth of the
Company shall be required.
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SECTION 116. No Recourse Against Others.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any supplemental Indenture, or in any Security or
coupon, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future shareholder,
director, officer or employee, as such, of the Company, or of any successor or
predecessor of the Company, either directly or through the Company or any
successor or predecessor, under any law, statute, rule, regulation,
constitutional provision, order or decree or by the enforcement of any
assessment or by any legal or equitable action or proceeding or otherwise. By
accepting a Security, each Holder shall waive and release all such liability
of any such incorporator, shareholder, director, officer or employee. Such
waiver and release shall be part of the consideration for the issuance of the
Securities.
ARTICLE TWO
SECURITY FORMS
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SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series, and related coupons shall be in such form
or forms (including permanent or temporary global form) as shall be
established in one or more indentures supplemental hereto or by or pursuant to
a Board Resolution in accordance with Section 301, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by or pursuant to this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon
as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange or as
may consistently herewith be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons.
If the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery
of such Securities or coupons.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons.
The definitive Securities and coupons, if any, shall be typewritten,
printed, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner, all as determined by the
officers of the Company executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
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SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
------------------------------
as Trustee
By:
------------------------------
Authorized Signer
SECTION 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture, the
Securities shall not be issuable in global form. If Securities of a series
shall be issuable in global form, any such Security may provide that it or any
number of such Securities shall represent the aggregate amount of all
Outstanding Securities of such series (or such lesser amount as is permitted
by the terms thereof) 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 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 be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
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.
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The Securities may be issued in one or more series. The terms of the
Securities in addition to or in lieu of those set forth in this Indenture
shall be determined or established in any one or more of the following ways:
(1) in one or more indentures supplemental hereto; (2) in one or more Board
Resolutions; or (3) in a manner specified in or authorized by one or more
Board Resolutions (in which case such Board Resolutions shall be included in
or attached to an Officers' Certificate setting forth such terms or the manner
in which such terms are to be determined or established). The terms to be so
determined or established shall include:
(a) the title of the Securities and the series in which such
Securities shall be included;
(b) any limit upon the aggregate principal amount of 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 such series pursuant to Section 304, 305, 306, 906 or
1107);
(c) whether such Securities are to be issuable as Registered
Securities, Bearer Securities (with or without coupons or both) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities of the series, the terms, if any, upon which Bearer Securities
of the series may be exchanged for Registered Securities of the series
and vice versa, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or without
coupons and, if so, (i) when any of such Securities are to be issued in
global form, (ii) whether beneficial owners of interests in any such
permanent global Security may exchange such interests for certificated
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 provided in Section 305, (iii) the
name of the U.S. Depository or the Depository, as the case may be, with
respect to any global Security, and (iv) the form of any legend or
legends to be borne by any such global Security in addition to or in lieu
of the legend referred to in Section 303;
(d) 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;
(e) 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 or any portion of the
Outstanding Bearer Securities of the series) payable in respect of an
Interest Payment Date therefor prior to the exchange, if any, 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
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(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;
(f) the date or dates on which the principal of such Securities is
payable, or the manner in which such date or dates shall be determined;
(g) the rate or rates at which such Securities shall bear interest,
if any, or the manner in which such rate or rates shall be determined,
the date or dates from which such interest shall accrue or the manner in
which such date or dates shall be determined, the Interest Payment Dates
on which any such interest shall be payable or the manner in which such
Interest Payment Dates shall be determined, and the Regular Record Date,
if any, for any interest payable on any such Registered Securities on any
such Interest Payment Date, whether and under what circumstances
Additional Amounts on such Securities or any of them shall be payable
and, if so, whether the Company has the option to redeem the affected
Securities rather than pay such Additional Amounts, and the basis upon
which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(h) each Place of Payment of such Securities, if any, other than or
in addition to the City of Columbus, Ohio and the Borough of Manhattan,
The City of New York, where, subject to Section 1002, the principal of
and any premium and interest on or Additional Amounts, if any, payable in
respect of, such Securities shall be payable, and the place or places
where any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and any notices and demands to or upon the Company in respect of
such Securities and this Indenture may be served;
(i) whether such Securities are to be redeemable at the option of
the Company and, if so, the date or dates on which, the period or periods
within which, the price or prices at which and the terms and conditions
upon which such Securities may be redeemed, in whole or in part, at the
option of the Company;
(j) the obligation, if any, of the Company to redeem such
Securities pursuant to any sinking fund or analogous provisions or to
repay such Securities at the option of a Holder thereof or upon the
occurrence of one or more specified events and, if so, the date or dates
on which, the period or periods within which (or the event or events upon
which), the price or prices at which and the other terms and conditions
upon which such Securities shall be redeemed or repaid, in whole or in
part, pursuant to such obligation, and any provisions for the remarketing
of such Securities so redeemed or repaid;
(k) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple
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thereof, and the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than the
denomination of $5,000;
(1) if other than the full principal amount thereof, the portion of
the principal amount of any such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the manner in which such portion is to be determined;
(m) whether the amount of payments of principal of and any premium
or interest on, and any Additional Amounts in respect of, such Securities
may be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more 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;
(n) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to such Securities,
whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein, any change in the
right of the Trustee or Holders to declare the principal of such
Securities due and payable, and any additions to the definitions
currently set forth in this Indenture;
(o) the form or forms of such Securities, if any, and, if any
Securities of such 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;
(p) 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 Authenticating Agent with respect to such Securities; and
(q) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and any coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
coin or currency of payments due thereunder, denomination, the rate or rates
of interest, if any, or the method of determining the rate of interest, if
any, the date or dates from which interest, if any, shall accrue, and Stated
Maturity and except as may otherwise be provided in the terms of such
Securities determined or established as provided above. All Securities of any
one series need not be issued at the same time and, unless otherwise provided,
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 or coupons of any series are
established by action that is specified in or authorized by a Board Resolution
and such action is to be taken at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series of Securities or the manner
in which such terms are to be determined or established, then a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of such
series or the manner in which such terms are to be determined or established.
SECTION 302. Currency; Denominations.
The principal of, any premium and interest on and any Additional Amounts
with respect to the Securities shall be payable in Dollars. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof, and any Bearer
Securities of a series shall be issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, its President or one of its Senior Vice Presidents, and attested by
its Treasurer or Secretary. The signature of any of these officers on the
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Treasurer of the Company.
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 on the date(s) such Securities were
issued.
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, together with the Board Resolution and Officers'
Certificate, supplemental indenture or other instrument with respect to such
Securities referred to in Sections 201 and 301 and a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order and subject to the provisions hereof shall authenticate
and deliver such Securities. If all the Securities of any series are not to
be issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as
interest rate, maturity date, date of issuance and date from which interest
shall accrue. In authenticating Securities hereunder, 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 Section 601) shall be fully protected in relying
upon,
(a) an Opinion of Counsel stating substantially to the effect that,
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(1) the form and terms of such Securities and coupons, if any,
or the manner of determining such terms, have been established in
conformity with the provisions of this Indenture; and
(2) such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance, or other laws
relating to or affecting the enforcement of creditors' rights and by
general equity principles; and
(b) an Officers' Certificate stating, to the best knowledge of each
signer of such certificate, that no event which is, or after notice or
lapse of time would become, an Event of Default with respect to any of
the Securities shall have occurred and be continuing.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate such Securities if the issuance 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 that is not reasonably acceptable to the Trustee.
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 Officers'
Certificate at the time of issuance of each such Security, but such opinion
and certificate shall be delivered at or before the time of issuance of the
first Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more global Securities, the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such
series, authenticate and deliver one or more global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by such global Security or Securities, (ii) shall be
registered, if in registered form, in the name of the Depository for such
global Security or Securities or the nominee of such Depository, (iii) shall
be delivered by the Trustee to such Depository or pursuant to such
Depository's instruction, and (iv) shall bear a legend substantially to the
following effect (or to such other effect as may be specified in the document
authorizing such series of Securities or as the Depository, the Trustee and
the Company may agree): "Unless and until it is exchanged in whole or in part
for Securities in certificated form, this Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository."
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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 appertaining thereto 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 613 executed by or on behalf of the
Trustee or an Authenticating Agent by the manual signature of one of its
authorized officers. Such an executed certificate of authentication 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 or pursuant
to this Indenture, 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 evidenced by their execution of such Securities. 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
that series to be prepared without unreasonable delay. After the preparation
of such definitive Securities, the temporary Securities of such series shall
be exchangeable for definitive Securities of such series containing identical
terms and provisions upon surrender of the temporary Securities of such series
at the office or agency of the Company maintained for such purpose pursuant to
Section 1002, without charge to the 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 aggregate
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 in or pursuant to this Indenture. 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, Registration of Transfer and Exchange.
With respect to the Registered Securities, if any, of each series of
Securities, 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 each series. Such office or
agency shall be the "Security Registrar" for the Registered Securities, if
any, of each series of Securities. In the event that the Trustee shall not
be the Security Registrar with respect to a particular series of Securities,
it shall have the right to examine the Security Register for such series at
all reasonable times. Unless otherwise provided with respect to a series of
Securities in a supplemental indenture, Board Resolution or other instrument
authorizing such series of Securities, Bank One, NA, is hereby appointed
Security Registrar for each series until a successor has been appointed by a
Board Resolution or an instrument executed on behalf of the Company by its
Chairman, President or one of its Senior Vice Presidents and delivered to the
Trustee.
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 and 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 (except
a global Security representing all or a portion of such series) may be
exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, containing
identical terms and provisions, 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 that the Holder
making the exchange is entitled to receive.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Bearer Securities of such series
may be exchanged for Registered Securities or Bearer Securities (if Bearer
Securities of such series are issuable in more than one denomination) of the
same series containing identical terms and provisions, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any office or agency of the Company
maintained 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
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of them and any Paying Agent harmless. If thereafter the Holder of such
Bearer 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 the same 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 proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for 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, shall 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 shall
be payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
If expressly provided in or pursuant to this Indenture with respect to
the 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 in or pursuant to this Indenture with
respect to such series.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
certificated Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed 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, (iii) an Event of Default has occurred and is continuing with
respect to the Securities of the same series, or (iv) in the case of a global
Security representing Bearer Securities, upon the written request of a
beneficial owner of an interest in such global Security given to the
Depository. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for certificated Securities of such
series, 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 certificated Securities in such form and denominations
as are required by or pursuant to this Indenture, and of the same series as,
containing identical terms as and 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
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such other Depository 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 certificated Securities as described
above, without charge, in accordance with instructions (which instructions
shall be in writing but need not be contained in or accompanied by an
Officers' Certificate or be accompanied by an Opinion of Counsel) given by
the Company to the Trustee and such U.S. Depository or other Depository, as
the case may be. 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 certificated Securities of the same series
of authorized denominations and of like tenor as the portion of such global
Security to be exchanged, which (unless such Securities 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 provided in or pursuant
to this Indenture) 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 for redemption of the same series and containing
identical terms and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) 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 the U.S. Depository or such other Depository
referred to above, as the case may be, in accordance with the instructions of
the Company referred to above, with an endorsement thereon to reflect the
decrease in the aggregate amount of Outstanding Securities represented
thereby. 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 for such
Security where such exchange occurs on or after (i) any Regular Record Date
for such Security and before the opening of business at such office or agency
on the next Interest Payment Date, or (ii) any Special Record Date for such
Security 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 shall 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 shall 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 shall be payable in accordance
with the provisions of this Indenture.
All Securities 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) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar therefor duly executed, by the Holder thereof or his attorney duly
authorized in writing.
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No service charge shall be made for any registration of transfer 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 provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange 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 like tenor and the same series under Section 1103 and ending at the close
of business (A) if Securities of the series are issuable only as Registered
Securities, on the day of the mailing of the relevant notice of redemption and
(B) if Securities of the series are issuable as Bearer Securities, on the day
of the first publication of the relevant notice of redemption or, if
Securities of the series are also issuable as Registered Securities and there
is no publication, the mailing of the relevant notice of redemption, (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, (iii) to exchange
any Bearer Security so selected for redemption, except, to the extent provided
with respect to such Bearer Security, that such Bearer Security may be
exchanged for a Registered Security of like tenor and the same 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 that, in accordance with its terms, has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so 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, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall 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 lieu of
any such 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 and
principal amount, containing identical terms and provisions 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.
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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 any premium or
interest on or any Additional Amounts with respect to any Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency for such Securities located outside the United States.
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, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen 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, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest and Certain Additional Amounts;
Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on and any Additional
Amounts with respect to any Registered Security that 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 at the close of business on the Regular Record Date
for such interest and any interest on any Bearer Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid upon surrender of the coupon appertaining thereto in respect of the
interest due on such Interest Payment Date. Unless otherwise provided in or
pursuant to this Indenture, in case a Bearer Security is surrendered in
exchange for a Registered Security after the close of business at an office or
agency for such Security on any Regular Record Date therefor and before the
opening of business at such office or agency on the next succeeding Interest
Payment Date therefor, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest shall not be
payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on and any
Additional Amounts with respect to any
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Registered Security of any series which is payable, but is not 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 thereof 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 subsection (a) or (b)
below:
(a) 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 prior to the date of the
proposed payment, such money when so deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
subsection 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,
United States first- class postage prepaid, to each Holder of such
Registered Securities (or their respective Predecessor Securities) at the
address of such Holder as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized Newspaper
of general circulation in The City of New York, but such publication
shall not be a condition precedent to the establishment of 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 subsection (b). In case a
Bearer Security of any series is surrendered at the office or agency for
such Security 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 shall not be payable on
such proposed date of payment in respect of the Registered Security
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issued in exchange for such Bearer Security, but shall be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture.
(b) The Company may make payment of any Defaulted Interest on such
Registered Securities 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 subsection (b), such manner of 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
or by transfer to an account maintained by the payee with a bank located in
the United States or by any other means permitted in the form of Securities of
any particular series pursuant to the provisions of this Indenture.
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 in
the Security Register as the owner and Holder of such Registered Security for
the purpose of receiving payment of the principal of and any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts in
respect of, such Registered Security and for all other purposes whatsoever,
whether or not any payment with respect to such Registered Security shall 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.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. 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.
No owner of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company,
the Trustee, and any agent of the Company or the Trustee as the owner and
Holder of such global Security for all purposes whatsoever. None of the
Company, the
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Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons, as well as
Securities and coupons surrendered directly to the Trustee for any such
purpose, shall be promptly canceled by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly canceled by the
Trustee. 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 or pursuant to this Indenture. All canceled Securities and
coupons held by the Trustee shall be disposed of in accordance with its
customary practices, subject to applicable law.
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 consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
--------------------------
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as provided in the last paragraph of this Section 401), and the
Trustee, on demand of and at the expense of the Company, shall execute such
instruments as may be requested by the Company acknowledging satisfaction and
discharge of this Indenture with respect to such series, when
(a) either
(1) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities of such series
surrendered for exchange for Registered Securities and maturing
after
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such exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities of such series and coupons
which have been destroyed, lost or stolen and that 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 by Section 1106, and (iv) Securities of such
series and coupons 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
(2) all such Securities of such series and, in the case of (i)
and (ii) below, any 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
irrevocably deposited or caused to be irrevocably deposited (except
as provided in Section 402(c)) with the Trustee, as trust funds
and/or obligations in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the
Securities of such series, (A) money in an amount, or (B) Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms, without
consideration of any reinvestment thereof, will provide not later
than the opening of business on the due dates of any payment of
principal and any premium, interest and Additional Amounts with
respect thereto money in an amount, or (C) a combination thereof,
sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for
cancellation, including the principal of, any premium and interest
on, and any Additional Amounts with respect to such Securities and
coupons, to the date of such deposit (in the case of Securities of
such series which have become due and
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payable) or to the Stated Maturity or Maturity thereof, as the case
may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee a Certificate of a
Firm of Independent Public Accountants certifying as to the sufficiency
of the amounts deposited pursuant to paragraph (2) of subsection (a) of
this Section for payment of the principal and any premium, interest and
Additional Amounts with respect to the Securities of such series on the
dates such payments are due, and 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 of Securities have been complied with.
If there are Securities of two or more series hereunder, and if a
different Trustee has been appointed with respect to one or more of such
series, then each Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture if requested to do
so only with respect to Securities of the series as to which it is Trustee and
if the other conditions thereto are met.
If subsequent to the date a discharge is effected pursuant to this
Section 401, Additional Amounts in excess of those established as of the date
such discharge is effected become payable in respect of the series of
Securities discharged, in order to preserve the benefits of the discharge
established hereunder, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of this Section 401,
within ten Business Days prior to the date the first payment in respect of any
portion of such excess Additional Amounts becomes due, such additional funds
as are necessary to satisfy the provisions of this Section 401 as if a
discharge were being effected as of the date of such subsequent deposit.
Failure to comply with the requirements of this paragraph shall result in the
termination of the benefits of the discharge established by this Section 401.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series of Securities, the obligations with respect to the right
of registration of transfer or exchange of Securities of such series provided
for herein, the obligations of the Company under the preceding paragraph, the
obligations of the Company to the Trustee under Section 607 and, if money
and/or Government Obligations shall have been irrevocably deposited with the
Trustee pursuant to paragraph (2) of subsection (a) 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.
(a) Subject to the provisions of the last paragraph of Section
1003, all money and/or Government Obligations deposited with the Trustee
pursuant to
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Section 401 or Section 1010 or pursuant to a supplemental indenture
entered into pursuant to Section 901(i), and all money received by the
Trustee in respect of any such Government Obligations, 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 any premium, interest and Additional
Amounts for whose payment such money has or Government Obligations have
been deposited with or received by the Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Section
401 or Section 1010 or any such supplemental indenture; but such money
and Government Obligations need not be segregated from other funds of the
Trustee except to the extent required by law.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against Government
Obligations deposited pursuant to Section 401 or Section 1010 or pursuant
to a supplemental indenture entered into pursuant to Section 901(i) or
the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any Government Obligations or money held by it
as provided in Section 401 or Section 1010 or in any supplemental
indenture entered into pursuant to Section 901(i) which, as expressed in
a Certificate of a Firm of Independent Public Accountants delivered to
the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such
obligations or money were deposited or received.
ARTICLE FIVE
REMEDIES
--------
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series (unless otherwise specified with respect to such series of
Securities in the supplemental indenture, Board Resolution or other instrument
authorizing such series of Securities), means any one of the following events
which has occurred and is continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest or Additional Amounts
payable in respect of any Security of that series or any coupon
appertaining thereto, when
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such interest or Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of and any premium on
any Security of that series when it becomes due and payable at its
Maturity; or
(c) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities of that
series (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or
which has been expressly included in this Indenture solely for the
benefit of a series of Securities other than that series), and
continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified United States mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the 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
(e) an 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 for money borrowed of the Company
(including a default under this Indenture with respect to Securities of
any series other than that series), whether such Indebtedness now exists
or shall hereafter be created, shall happen and shall result in a
principal amount in excess of $25,000,000 of Indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, and such acceleration shall not
have been rescinded or annulled, or such Indebtedness shall not have been
discharged, within a period of 15 days after there has been given, by
registered or certified United States mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that 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
(f) a court having jurisdiction in the premises shall have entered
a decree or order for relief in respect of the Company in an involuntary
proceeding under any applicable United States bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or of all or any
substantial part of its property, or ordering the winding-up or
liquidation of its
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affairs, and such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days; or
(g) the Company shall have commenced a voluntary proceeding under
any applicable United States bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or shall have consented to
the entry of an order for relief in an involuntary case under any such
law, or shall have consented to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) of the Company or of all or any substantial part
of its property, or shall have made an assignment for the benefit of
creditors; or
(h) the Company shall have taken any corporate action in
furtherance of any of the matters referred to in subsection (g) above; or
(i) any other Event of Default provided with respect to Securities
of such series in the supplemental indenture, Board Resolution or other
instrument authorizing such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, if an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing (other than an
Event of Default specified in Section 501(f) or (g)), then, and in every such
case, the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities
as may be specified in the terms thereof of all of 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 amount (or such specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501
(f) or (g) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then, and in every such case, the principal amount
(or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series shall
become and be immediately due and payable without any declaration or other
action on the part of the Trustee or any Holder.
At any time after such acceleration with respect to Securities of any
series and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may rescind and
annul such acceleration and its consequences if:
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(a) the Company has paid or deposited with the Trustee a sum of
money sufficient to pay
(1) all overdue installments of any interest on and Additional
Amounts payable in respect of all Securities of that series and any
coupons appertaining thereto,
(2) the principal of and any premium on any Securities of that
series which have become due otherwise than by reason of such
acceleration and interest thereon and Additional Amounts with
respect thereto at the rate or rates borne by or provided for in
such Securities,
(3) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(4) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which has become due solely by reason of such 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
(a) default is made in the payment of any installment of interest
or any Additional Amounts payable in respect of any Security or any
coupon appertaining thereto when such interest or Additional Amounts
shall have become due and payable and such default continues for a period
of 30 days, or
(b) default is made in the payment of the principal of or any
premium on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of all Securities which are of the same series as such
Security and any coupons appertaining thereto, the whole amount of money then
due and payable with respect to such Securities and coupons for
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principal, premium, interest and Additional Amounts and, to the extent that
payment of such interest shall be legally enforceable, interest upon any
overdue principal (and premium, if any) and upon any overdue installments of
interest and Additional Amounts, at the rate or rates borne by or provided for
in such series of Securities, and, in addition thereto, such further amount of
money 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, 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 coupons
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities and coupons, 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 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 such Securities or in aid of the exercise of any power granted
herein or therein, 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 and any coupons appertaining thereto 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 acceleration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of any series, of
principal, premium, interest and 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 and counsel) and of the Holders of Securities and
coupons allowed in such judicial proceeding relative to the Company upon
the Outstanding Securities, its creditors, or its property, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claim and to distribute the same;
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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 and coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities and 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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder 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 of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, any
premium, interest or 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 under Section
607;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any coupons for principal and any premium, interest and
Additional Amounts 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 any premium, interest and
Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 507. Limitation on Suits.
Subject to Section 508, no Holder of any Security of any series or any
related coupons shall have any right to institute any action or 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
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of not less than 25% in aggregate 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;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such action or
proceeding; and
(e) 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 aggregate principal amount of the Outstanding Securities of
that 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 of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and any
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) any interest on, and any Additional Amounts in respect
of, such Security, or payment of such coupon, as the case may be, on the
respective Stated Maturity or Maturities thereof expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date or, in the case
of repayment at the option of such Holder, on the date such repayment is due)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
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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 the Holders of Securities or coupons 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 such Holders 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 Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any 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 of Securities.
The Holders of a majority in aggregate 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, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of such series;
(b) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction;
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(c) such direction is not unduly prejudicial to the rights of other
Holders of Securities of such series not joining in such action; and
(d) subject to the provisions of Sections 601 and 603, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the
Trustee in personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to the Securities of such series and its consequences,
except a default
(a) in the payment of the principal of or any premium or interest
on, or Additional Amounts in respect of, any Security of such series; or
(b) 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. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant (other than the Company and the Trustee) in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any suit instituted
by any Holder of a Security or coupon for the enforcement of the payment of
the principal of or any premium or interest on, or Additional Amounts in
respect of, any Security, or the payment of any coupon, on or after the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case
of redemption, on or after the Redemption Date or, in the case of repayment at
the option of a Holder, on or after the date such repayment is due) or
interest on any overdue principal of any Security.
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SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law 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. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and only
such duties, as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
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(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions
of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, notice of
such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of or any premium or interest on, or
Additional Amounts in respect of any Security of such series or in the payment
of any sinking or purchase 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 any default of the character specified in Section 501(d) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence
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thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Security 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;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note 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 reasonably see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
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entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any Event of
Default (other than a default in any payment with respect to a Security
due on a fixed date and with respect to which the Trustee is a Paying
Agent) unless either (i) a Responsible Officer of the Trustee assigned to
its corporate trust department shall have actual knowledge thereof or
(ii) the Trustee shall have received written notice thereof in accordance
with Section 105 from the Company or any Holder.
SECTION 604. 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 neither the Trustee nor any Authenticating
Agent assumes any 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 on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent
or any other agent of the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities and coupons and, subject to the
provisions of the Trust Indenture Act, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar, Authenticating Agent or such other agent.
SECTION 606. 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. 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 607. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except to the extent any
such expense, disbursement or advance may be attributable to the
Trustee's gross negligence or willful misconduct; and
(c) to indemnify each of the Trustee and its agents for, and to
hold each of them harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to the Trustee's or its agents' bad faith,
negligence or willful misconduct.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities 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 any premium or interest on, or
Additional Amounts in respect of, particular Securities or any coupons
appertaining thereto. "Trustee" for purposes of this Section 607 includes any
predecessor Trustee, but negligence or bad faith of any Trustee shall not be
attributed to any other Trustee.
SECTION 608. Disqualifications; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest, within the
meaning of the Trust Indenture Act, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required, Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation or other person permitted by the Trust Indenture Act to act as
Trustee under an indenture qualified under the Trust Indenture Act and that
has a combined capital and surplus of at least $50,000,000. If at any time
the
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Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the
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 611 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of 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 aggregate
principal amount of the Outstanding Securities of such series delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 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 609
and shall fail to resign after written request therefor by the
Company or by any such Holder of a Security, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove such Trustee with respect to all Securities as to which it is
Trustee or (ii) subject to Section 514, 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 such Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or
Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. 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 aggregate 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 611, 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 611, 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 to the Holders of Securities of a
particular series of each resignation and each removal of the Trustee
with respect to the Securities of such series and each appointment of a
successor Trustee with respect to the Securities of such series in the
manner provided in Section 106. Each such 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 and New York Facility.
SECTION 611. 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 to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties
hereunder of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts hereunder of the retiring
Trustee, and shall duly assign, transfer and deliver to such
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successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees as 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 other
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 subsection (a) or (b) of this Section, as the case
may be.
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(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided such corporation shall be otherwise
qualified and eligible under this Article. 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 613. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents acceptable to
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 such
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. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. 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
subject to the approval of the Company and shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time 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.
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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
of resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time 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 United States first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the
series with respect to which such Authenticating Agent shall 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 herein. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation, including reimbursement of its reasonable expenses
for its services under this Section.
The provisions of Sections 308, 604 and 605 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
alternative certificate of authentication substantially in the following form:
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This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
-----------------------------------
as Trustee
By:
-----------------------------------
as Authenticating Agent
By:
-----------------------------------
Authorized Signer
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 and need not be accompanied by an Opinion of Counsel)
by the Company, shall appoint in accordance with this Section 613, and on
terms acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
------------------------------------------------
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders
of Registered Securities.
The Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than fifteen days after the Regular
Record Date for a semi-annual Interest Payment Date for each series of
Securities, or, if there is no semi-annual Interest Payment Date for a
series of Securities, then not later than May 15 and November 15 in each
year, commencing on the first May 15 or November 15, as the case may be,
after the first issuance of such Securities hereunder, 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 a date not more
than 15 days prior to the date of delivery thereof, 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,
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provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished for Securities for which the
Trustee acts as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to
Section 312 of the Trust Indenture Act.
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 Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with Section 312(c) of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under Section 312(b) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this
Indenture, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit a brief report dated as of such May 15 with
respect to any of the events specified in such Section 313(a) which may
have occurred since the later of the immediately preceding May 15 and the
date of this Indenture.
(b) The Trustee shall transmit the reports required by Section
313(b) 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 Section 313(c) and filed in the
manner and with the Persons required by Section 313(d) of the Trust
Indenture Act.
SECTION 704. Reports by Company.
(a) The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(i) 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
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Exchange Act of 1934, as amended; 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, as amended, 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;
(ii) 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 the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) transmit to the Holders of Securities 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 subsections (i) and (ii) of this
Section 704(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) The Company shall notify the Trustee when and as the Securities
of any series become admitted to trading on any national securities
exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
-----------------------------------------
SECTION 801. Consolidations and Mergers of Company and Sales and
Conveyances Permitted Subject to Certain Conditions.
The Company may consolidate with, merge with or into, or sell or convey
all or substantially all of its assets to, any other corporation, provided
that (a) (i) in the case of a merger, the Company is the surviving entity in
such merger, or (ii) in the case of a merger in which the Company is not the
surviving entity or in the case of a consolidation or a sale or conveyance of
assets, the corporation into which the Company is merged or the corporation
which is formed by such consolidation or which acquires by sale or conveyance
all or substantially all of the assets of the Company shall be a corporation
organized and existing under the laws of the United States of
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America or a State thereof and such successor corporation shall
expressly assume the due and punctual payment of the principal of and
any premium and interest on, and any Additional Amounts payable pursuant
to Section 1004 in respect of, all the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants of this Indenture and the Securities to be performed or
observed by the Company by a supplemental indenture in form satisfactory
to the Trustee, executed and delivered to the Trustee by such
corporation and (b) the Company or such successor corporation as the
case may be, shall not, immediately after such merger or consolidation,
or such sale or conveyance, be in default in the performance or
observance of any such covenant.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such merger in which the Company is not the surviving
entity or any such consolidation, sale or conveyance, and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a conveyance by way of lease, shall be
relieved of any further obligation under this Indenture and the Securities and
any coupons appertaining thereto. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Securities and coupons issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee, and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities and coupons which previously shall have been signed and delivered
by the officers of the Company to the Trustee for authentication, and any
Securities or coupons which such successor corporation thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the
Securities and coupons so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities and coupons
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities and coupons had been issued at the
date of the execution hereof.
In case of any such merger in which the Company is not the surviving
entity or any such consolidation, sale or conveyance, such changes in
phraseology and form (but not in substance) may be made in the Securities and
coupons thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, sale or conveyance, and any such
assumption by the successor corporation, complies with the provisions of this
Article.
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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 or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(b) 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
(c) to add any additional Events of Default with respect to all or
any series of Securities; or
(d) 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) or any interest on or Additional Amounts with respect to
Registered Securities or Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to modify the
provisions relating to global Securities or to permit the issuance of
Securities in uncertificated form, provided that any such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(e) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination not otherwise permitted under
this Section 901 shall (i) become effective only when there is no
Security Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision
or (ii) not apply to any Security then Outstanding; or
(f) to secure the Securities pursuant to the requirements of
Sections 801 or 1007, or otherwise; or
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(g) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(h) 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 611(b); or
(i) to provide that the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding Securities of
any series on the 91st day after the date of the deposit referred to in
paragraph (5) hereof, and that the provisions of this Indenture, as they
relate to such Outstanding Securities (except as to any right to receive
Additional Amounts, as provided in Section 1004), shall no longer be in
effect (and the Trustee, at the expense of the Company, shall at Company
Request, execute proper instruments acknowledging the same), except as
to:
(1) the rights of holders of such Outstanding Securities to
receive, from the trust funds described in paragraph (5) hereof, (i)
payment of the principal of (and premium, if any) and any
installment of the principal of (and premium, if any) and/or
interest on the Outstanding Securities of that series on the Stated
Maturity or Maturity of such principal or installment of principal
and/or interest and (ii) any mandatory sinking fund payments or
analogous payments or any Additional Amounts applicable to
Securities of such series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of
such Securities,
(2) the Company's obligations with respect to such Securities
under Sections 305, 306, 402, 1002 and 1003,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and
(4) such other rights, if any, that are specified in such
supplemental indenture as surviving such payment and discharge,
provided that the following conditions shall have been satisfied:
(5) with reference to such provision, the Company has
irrevocably deposited or caused to be irrevocably deposited (except
as provided in Section 402(c)) with the Trustee, as trust funds
and/or obligations in trust, specifically pledged as security for,
and dedicated
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solely to, the benefit of the Holders of the Securities of that
series, (i) money in an amount, or (ii) Government Obligations which
through the payment of interest and principal in respect thereof in
accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than one day before the
due date of any payment referred to in clause (A) or (B) of this
paragraph (5) money in an amount or (iii) a combination thereof,
sufficient, as expressed in a Certificate of a Firm of Independent
Public Accountants delivered to the Trustee, to pay and discharge
(A) the principal of (and premium, if any) and any installment of
the principal of (and premium, if any) and/or interest on the
Outstanding Securities of that series due on the Stated Maturity or
Maturity of such principal or installment of principal and/or
interest and (B) any mandatory sinking fund payments or analogous
payments or any Additional Amounts applicable to Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
(6) such deposit shall not cause the Trustee with respect to
the Securities of that series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to the Securities
of any series;
(7) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement
or instrument relating to borrowed money, pursuant to which in
excess of $25,000,000 principal amount is then outstanding, to which
the Company is a party or by which it is bound;
(8) no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to
Securities of that series shall have occurred and be continuing on
the date of such deposit or during the period ending on the 91st day
after such date;
(9) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the
United States Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case, to the effect that Holders
of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax
on the same
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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;
(10) if the Securities of such series are to be redeemed,
either notice of such redemption shall have been given or the
Company shall have given the Trustee irrevocable directions to give
notice of such redemption in the name, and at the expense, of the
Company, under arrangements satisfactory to the Trustee;
(11) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance, as specified in this Section
901(i), have been complied with; and
(12) such supplemental indenture shall contain a provision
substantially to the same effect as the last paragraph of Section
1010 but relating to the Securities to be discharged under the terms
of such supplemental indenture; or
(j) 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
(k) 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, provided such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of such Holders delivered to the Company and
the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
and any related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security; or reduce the
principal amount thereof or the
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rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium payable upon the redemption thereof or
otherwise, or change any obligation of the Company to pay Additional
Amounts pursuant to Section 1004 (except as contemplated by Section 801
and permitted by Section 901(a) and (d)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of
any Security, or, subject to the provisions of Section 1002, change any
Place of Payment where the principal of any Security or any premium or
the interest thereon or any Additional Amounts with respect thereto 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, in the case of repayment
at the option of the Holder, on or after the date for repayment); or
(b) reduce the percentage in aggregate 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
(c) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase the percentage in aggregate principal
amount of the Outstanding Securities of any series, the consent of whose
Holders is required for the actions specified herein or therein, 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; provided, however, that this subsection shall
not be deemed to require the consent of any Holder of Securities or
coupons with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1009, or the deletion of
this provision, in accordance with the requirements of Section 901(h).
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 or coupons
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.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series.
ARTICLE TEN
COVENANTS
---------
SECTION 1001. Payment of Principal and any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of
Securities of each series that it will duly and punctually pay the principal
of and any premium and interest on, and 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 the Maturity thereof, other than Additional Amounts,
if any, payable as provided in Section 1004 in respect of
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principal of or any premium 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 shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that 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,
and the Company hereby initially appoints the Trustee at its Corporate Trust
Office and its New York Facility as its agent to receive all such
presentations, surrenders, notices and demands. 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 any 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), where Securities of that series may be
surrendered for 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;
provided, however, that if the Securities of such series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company shall
maintain a Paying Agent for the Securities of such series in London, 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 each 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 or the New York Facility of the Trustee, except that Bearer Securities
of that series and any related coupons may be presented and surrendered for
payment (including payment of any Additional Amounts payable on Bearer
Securities of that series pursuant to Section 1004) at the place specified for
the purpose pursuant to Section 301.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, or any premium or interest on or Additional Amounts in respect of
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that payment of principal of and any premium or interest
(including Additional Amounts payable in respect thereof) on any Bearer
Security may be made in Dollars at the Corporate Trust Office of the Trustee
if (but only if) payment in Dollars of the full amount of such principal,
premium, interest or Additional Amounts, as the case may be, at all offices or
agencies outside the United States
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maintained for such 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 of such purposes, and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company shall 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 set forth in, or pursuant to, a Board Resolution or any indenture
supplemental hereto with respect to a series of Securities issuable as
Registered Securities, the Company hereby designates as Places of Payment for
each series of Securities issuable as Registered Securities the City of
Columbus, Ohio and the Borough of Manhattan, The City of New York, and
initially appoints the Trustee at its Corporate Trust Office and its New York
Facility as Paying Agent and as its agent to receive all such presentations,
surrenders, notices and demands.
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 shall, on or before each due date of the
principal of and any premium or interest on or Additional Amounts with respect
to any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
and any premium, interest or Additional Amounts so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall 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 shall, on or prior to each due date of the principal of and
any premium or interest on or any Additional Amounts with respect to any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the principal and any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, interest or Additional Amounts, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of its
action or failure so to act.
The Company shall 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:
(a) hold all sums held by it for the payment of the principal of
and any premium or interest on or Additional Amounts with respect to
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 provided in or pursuant to this Indenture;
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(b) 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 the principal of, any premium or interest on or Additional
Amounts with respect to Securities of that series; and
(c) 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, discharge or defeasance 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 trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, 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 any premium or interest on or Additional Amounts in respect
of any Security of any series and remaining unclaimed for one year after such
principal and any premium or interest or Additional Amounts has become due and
payable shall be paid to the Company upon Company Request along with interest,
if any, that has been accumulated thereon 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 of such principal, premium or
interest, without interest thereon, 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 of 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, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts to the Holders of such Securities, then the Company shall pay to each
Holder of such Securities or any coupon appertaining thereto the Additional
Amounts as provided therein. Whenever there is mentioned in this Indenture,
in any context, the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of 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 for by the terms of such series pursuant hereto to
the extent that, in such context, Additional Amounts are, were or would be
payable in
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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 in or pursuant to this Indenture, 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 such 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 of
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 Company's principal Paying Agent
or Paying Agents, if other than the Trustee or the Company, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of such series shall be made to Holders of Securities of such
series or any related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge
described in the Securities of such 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 shall pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. 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 shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement, which need not comply
with Section 102, signed by the principal executive officer, the
principal financial officer or the principal accounting officer of the
Company, as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this
Section 1005, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
(b) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after
notice or lapse of time or both would become an Event of Default pursuant
to Section 501.
SECTION 1006. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
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SECTION 1007. Limitation on Liens.
The Company shall not, and shall not permit any Subsidiary to, create,
assume or incur, or suffer or permit to exist, any Lien of any kind, as
security for borrowed money so long as any of the Securities or coupons
appertaining thereto shall remain Outstanding, upon the shares of capital
stock of any Significant Subsidiary without effectively providing prior to or
concurrently therewith that the Securities shall be secured equally and
ratably with or prior to the indebtedness or other obligations secured by such
Mortgage.
SECTION 1008. Limitation on Sale of Stock.
The Company will not, and will not permit any Significant Subsidiary to,
sell, assign, transfer or otherwise dispose of, and will not permit any
Significant Subsidiary to issue (other than to the Company), any capital stock
of any such Significant Subsidiary or securities convertible into, or options,
warrants or rights to subscribe for or to purchase, any capital stock of any
such Significant Subsidiary, except:
(a) sales or other dispositions of the shares of capital stock of a
Significant Subsidiary made to an individual for the purpose of
qualifying such individual to serve as a director of such Significant
Subsidiary; or
(b) sales or other dispositions of shares of the capital stock of a
Significant Subsidiary for cash consideration that is at least equal to
the fair market value thereof (as determined by the Board of Directors)
if, after giving effect thereto and assuming conversion of any
convertible securities, the Company will continue to own not less than
80% of each class of capital stock of such Significant Subsidiary; or
(c) sales or other dispositions of shares of the capital stock of a
Significant Subsidiary made in connection with a merger or consolidation,
if, after giving effect to such merger or consolidation, the Company's or
any such Significant Subsidiary's proportionate ownership share in the
resulting or surviving entity is not less than its proportionate
ownership share in such Significant Subsidiary immediately prior to such
merger or consolidation; or
(d) sales or other dispositions of shares of the capital stock of a
Significant Subsidiary made in compliance with a final order of a court
or regulatory authority of competent jurisdiction; or
(e) sales or other dispositions of shares of the capital stock of a
Subsidiary made by any Significant Subsidiary to the Company.
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SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1006 and 1007 and any covenant not
currently included in this Indenture but specified as applicable to a series
of Securities as contemplated by Section 301, with respect to the Securities
of any series if before or after the time for such compliance the Holders of a
majority in aggregate 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 covenant or condition, but no
such waiver shall extend to or affect any such covenant or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such covenant or condition shall remain in full force and effect.
SECTION 1010. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or condition set
forth in Section 1007, and any additional covenants not currently included in
this Indenture but specified as applicable to the Securities of any series as
contemplated by Section 301, if
(a) with reference to this Section 1010, the Company has
irrevocably deposited or caused to be irrevocably deposited (except as
provided in Section 402(c)) with the Trustee, as trust funds and/or
obligations in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of that series,
(i) money in an amount, or (ii) Government Obligations which through the
payment of interest and principal in respect thereof in accordance with
their terms, without consideration of any reinvestment thereof, will
provide not later than one day before the due date of any payment
referred to in clause (A) or (B) of this subsection (a) money in an
amount, or (iii) a combination thereof, sufficient, as expressed in a
Certificate of a Firm of Independent Public Accountants delivered to the
Trustee, to pay and discharge (A) the principal of (and premium, if any)
and any installment of the principal of (and premium, if any) and/or
interest on the Outstanding Securities of that series due on the Stated
Maturity or Maturity of such principal or installment of principal and/or
interest and (B) any mandatory sinking fund payments or analogous
payments or any Additional Amounts applicable to Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
(b) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest for purposes of
the Trust Indenture Act with respect to the Securities of any series;
(c) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument relating to
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the borrowing of money, pursuant to which in excess of $25,000,000
principal amount is then outstanding, to which the Company is a party or
by which it is bound;
(d) no Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to Securities of
that series shall have occurred and be continuing on the date of such
deposit;
(e) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and defeasance of certain obligations 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 and
defeasance had not occurred;
(f) if the Securities of such series are to be redeemed, either
notice of such redemption shall have been given or the Company shall have
given the Trustee irrevocable direction to give notice of such redemption
in the name and at the expense of the Company, under arrangements
satisfactory to the Trustee; and
(g) 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 defeasance contemplated by
this Section have been complied with.
In the event that, subsequent to the date a defeasance is effected
pursuant to this Section 1010 with respect to Securities of any series,
Additional Amounts in excess of those established as of the date such
defeasance is effected become payable in respect of such Securities, in order
to preserve the benefits of the defeasance established hereunder with respect
to such series, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of subsection (a) of
this Section 1010, within ten Business Days prior to the earlier to occur of
(i) one year after the existence of such excess Additional Amounts is
established and (ii) the date the first of any portion of such excess
Additional Amounts becomes due, such additional funds as are necessary to
satisfy the provisions of such subsection (a) as if a defeasance were being
effected as of the date of such subsequent deposit. For purposes of this
paragraph, the existence of excess Additional Amounts shall be deemed to have
been established as of the date the governmental authority imposing the tax,
duty, assessment or other governmental charge resulting in the Additional
Amounts first publishes the legislation, regulation or other enactment
adopting such tax, duty, assessment or other governmental charge. Failure to
comply with the requirements of this paragraph shall result in the termination
of the benefits of the defeasance established by this Section 1010 with
respect to the Securities of such series.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
------------------------
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the option
of the Company of Securities of any series, 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. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series with the same terms are to
be redeemed, the particular Securities to be redeemed shall be selected by the
Trustee not more than 60 days prior to the Redemption Date from the
Outstanding Securities of such series having such terms not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Registered Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
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 Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
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SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to each
Holder of Securities to be redeemed. Failure to give such notice by mailing
in the manner therein provided to the Holder of any Registered Security
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 such Security or portion thereof.
Any notice that is given in the manner provided in Section 106 shall be
conclusively presumed to have been duly given, whether or not the Holder of
Securities receives the notice.
All notices of redemption shall state, to the extent applicable:
(a) the Redemption Date;
(b) the Redemption Price and accrued interest, if any;
(c) 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 Security or Securities to be
redeemed;
(d) 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;
(e) that on the Redemption Date the Redemption Price and any
accrued interest and Additional Amounts shall become due and payable upon
each such Security or portion thereof to be redeemed and, if applicable,
that interest thereon shall cease to accrue on and after said date;
(f) 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 any accrued interest and Additional Amounts
pertaining thereto;
(g) that the redemption is for a sinking fund, if such is the case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless
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security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished;
(i) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on the Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made; and
(j) the CUSIP number (or any other numbers used by a Depository to
identify such Securities), if any, of the Securities to be redeemed.
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 except in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) any accrued interest
on and Additional Amounts in respect of, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
If notice of redemption has been given as provided in Section 1104, 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 any accrued interest (and 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, 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,
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or one or more Predecessor Securities, registered as such at the close of
business on the relevant Regular Record Dates or Special Record Dates, as the
case may be, 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 any interest (and any Additional Amounts)
represented by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency for such Security 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, any premium, and, to the extent
permitted by applicable law, the interest required to be paid thereon shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Registered Security or Registered 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.
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<PAGE>
ARTICLE TWELVE
SINKING FUNDS
-------------
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to the sinking fund,
if any, for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of 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 a series required to be made
pursuant to the terms of such Securities (i) deliver Outstanding Securities of
such series (other than any of such Securities previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto, and (ii) 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 Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, as provided for by the terms of such Securities; provided
that such Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (or such shorter notice as the Trustee may approve), 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 or crediting Securities of that series pursuant to
Section 1202, the basis for any such crediting 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
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<PAGE>
sinking fund payment, the Company shall thereupon be obligated to pay the
amount therein specified. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 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 OF SECURITIES
---------------------------------
SECTION 1401. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable, in whole or in part, as Bearer
Securities, 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 or pursuant to this Indenture to be made, given or
taken by Holders of Securities of such series.
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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 in such other place outside the United States 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, by or pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate 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 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 (i) a Holder of one or more Outstanding Securities
of such series, or (ii) 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 aggregate principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that if any action
is to be taken at such meeting with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture or which the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities expressly provides may be
made, given, or taken by the Holders of a specified percentage that is less or
greater than a majority in aggregate principal amount of the Outstanding
Securities of a series, then with respect to such action (and only such
action), the Persons entitled to vote such
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lesser or greater percentage in aggregate principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of 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 with respect to each action to be
considered at such meeting.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting duly convened or an 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 aggregate 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 or which the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities expressly provides may be
made, given or taken by the Holders of a specified percentage, that is less or
greater than a majority, in aggregate principal amount of the Outstanding
Securities of a series may be adopted at a meeting duly convened or an
adjourned meeting duly reconvened and at which a quorum is present 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 related
coupons, whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of any 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
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authorized by Section 104 to certify to the holding of Bearer Securities.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1402(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding 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 aggregate
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 such 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
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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.
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.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested, all as of the day and year first above written.
OLD NATIONAL BANCORP
By:
---------------------------------
Attest: John N. Royse, Chairman and Chief
Executive Officer
By:
--------------------------------------
Jeffrey L. Knight, Corporate Secretary
and General Counsel
BANK ONE, NA
By:
---------------------------------
Attest: Jon Beacham, Assistant Vice
President
By:
--------------------------------------
Ted Kravits, Assistant Vice
President
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<PAGE>
STATE OF INDIANA )
)
COUNTY OF VANDERBURGH: )
On the ______ day of _______________________, 1997, before me personally
came John N. Royse, to me known, who, being by me duly sworn, did depose and
say that he is the Chairman and Chief Executive Officer of Old National
Bancorp, one of the corporations described in and which executed the foregoing
instrument, and that he signed his name thereto by like authority.
--------------------------------------
Notary Public
--------------------------------------
Printed Name
My Commission Expires: County of Residence:
- ---------------------- --------------------
STATE OF )
)
COUNTY OF )
On the _____ day of ________________, 1997, before me personally came Jon
Beacham, to me known, who, being by me duly sworn, did depose and say that he
is an Assistant Vice President of Bank One, NA, one of the corporations
described in and which executed the foregoing instrument, and that he signed
his name thereto by like authority.
--------------------------------------
Notary Public
--------------------------------------
Printed Name
My Commission Expires: County of Residence:
- ---------------------- --------------------
SS-115952-3
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Exhibit 12.1
STATEMENT REGARDING COMPUTATION
OF RATIO OR EARNINGS TO FIXED CHARGES
The ratio or earnings to fixed charges for the Company have been computed
on the basis of the enterprise as a whole (as defined by the Securities and
Exchange Commission) by dividing earnings by fixed charges. Earnings include
pretax income from continuing operations plus fixed charges. Fixed charges
include the total of interest expense, capitalized interest, expensed or
capitalized amortization of debt expense and any related discount or premium,
and such portion of rental expense which is representative of the interest
factor or each such rental.
MM:awc:SS-122665-1
Registration No. 333-29433
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE TRUST INDENTURE ACT OF
1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
BANK ONE, NA F/K/A BANK ONE, COLUMBUS, N.A.
Not Applicable 31-4148768
(State of Incorporation (I.R.S. Employer
if not a national bank) Identification No.)
100 East Broad Street, Columbus, Ohio 43271-0181
(Address of trustee's principal (Zip Code) executive offices)
Jeff Eubank
c/o Bank One Trust Company, NA
100 East Broad Street
Columbus, Ohio 43271-0181
(614) 248-2566
(Name, address and telephone number of agent for service)
OLD NATIONAL BANCORP
(Exact name of obligor as specified in its charter)
Indiana 35-1439838
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
420 Main Street
Evansville, Indiana 47708
(Address of principal executive (Zip Code)
offices)
<PAGE>
OLD NATIONAL BANCORP MEDIUM-TERM NOTES DUE NINE MONTHS OR MORE FROM DATE
OF ISSUE
(Title of the Indenture securities)
GENERAL
1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY
TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Cleveland, Cleveland, Ohio
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
16. LIST OF EXHIBITS
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY
AND QUALIFICATION. (EXHIBITS IDENTIFIED AS ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS EXHIBITS HERETO.)
Exhibit 1 - A copy of the Articles of Association of the trustee as now in
effect.
Exhibit 2 - A copy of the Certificate of Authority of the trustee to commence
business, see Exhibit 2 to Form T-1, filed in connection with Form S-3
relating to Wheeling-Pittsburgh Corporation 9 3/8% Senior Notes due 2003,
Securities and Exchange Commission File No. 33-50709.
Exhibit 3 - A copy of the Authorization of the trustee to exercise corporate
trust powers, see Exhibit 3 to Form T-1, filed in connection with Form S-3
relating to Wheeling-Pittsburgh
<PAGE>
Corporation 9 3/8% Senior Notes due 2003, Securities and Exchange
Commission File No. 33-50709.
Exhibit 4 - A copy of the Bylaws of the trustee as now in effect.
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, as amended.
Exhibit 7 - Report of Condition of the trustee as of the close of business on
March 31, 1997, published pursuant to the requirements of the Comptroller of
the Currency, see Exhibit 7 to Form T-1, filed in connection with Form S-3
relating to Reliant Building Products, Inc., 10 7/8% Senior Subordinated Notes
due 2004, Securities and Exchange Commission File No. 333-30699.
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
Items 3 through 15 are not answered pursuant to General Instruction B which
requires responses to Item 1, 2 and 16 only, if the obligor is not in default.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, Bank One, NA, f/k/a/ Bank One, Columbus, NA, a national
banking association organized under the National Banking Act, has duly caused
this statement of eligibility and qualification to be signed on its behalf by
the undersigned, thereunto duly authorized, all in Columbus, Ohio on July 3,
1997.
Bank One, NA
f/k/a Bank One, Columbus, NA
By: /s/ Jeff Eubank
-------------------------
Jeff Eubank
Authorized Signer
<PAGE>
Exhibit 1
BANK ONE, COLUMBUS, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
-----------------------
For the purpose of organizing an association to carry on the business of
banking under the laws of the United States, the following Articles of
Association are entered into:
FIRST. The title of this Association shall be BANK ONE, COLUMBUS,
NATIONAL ASSOCIATION.
SECOND. The main office of the Association shall be in Columbus, County
of Franklin, State of Ohio. The general business of the Association shall be
conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of not
less than five nor more than twenty-five Directors, the exact number of
Directors within such minimum and maximum limits to be fixed and determined
from time-to-time by resolution of the shareholders at any annual or special
meeting thereof, provided, however, that the Board of Directors, by resolution
of a majority thereof, shall be authorized to increase the number of its
members by not more than two between regular meetings of the shareholders.
Each Director, during the full term of his directorship, shall own, as
qualifying shares, the minimum number of shares of either this Association or
of its parent bank holding company in accordance with the provisions of
applicable law. Unless otherwise provided by the laws of the United States,
any vacancy in the Board of Directors for any reason, including an increase in
the number thereof, may be filled by action of the Board of Directors.
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<PAGE>
FOURTH. The annual meeting of the shareholders for the election of
Directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office of this Association or such
other place as the Board of Directors may designate, on the day of each year
specified therefor in the By-Laws, but if no election is held on that day, it
may be held on any subsequent business day according to the provisions of law;
and all elections shall be held according to such lawful regulations as may be
prescribed by the Board of Directors.
FIFTH. The authorized amount of capital stock of this Association shall
be 2,073,750 shares of common stock of the par value of Ten Dollars ($10)
each; but said capital stock may be increased or decreased from time-to-time,
in accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the
Association shall have the preemptive or preferential right of subscription to
any share of any class of stock of this Association, whether now or hereafter
authorized or to any obligations convertible into stock of this Association,
issued or sold, nor any right of subscription to any thereof other than such,
if any, as the Board of Directors, in its discretion, may from time-to-time
determine and at such price as the Board of Directors may from time-to-time
fix.
This Association, at any time and from time-to-time, may authorize
and issue debt obligations, whether or not subordinated, without the approval
of the shareholders.
SIXTH. The Board of Directors shall appoint one of its members President
of the Association, who shall be Chairman of the Board, unless the Board
appoints another director to be the Chairman. The Board of Directors shall
have the power to
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<PAGE>
appoint one or more Vice Presidents and to appoint a Secretary and such other
officers and employees as may be required to transact the business of this
Association.
The Board of Directors shall have the power to define the duties of
the officers and employees of this Association; to fix the salaries to be paid
to them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of this
Association shall be made; to manage and administer the business and affairs
of this Association; to make all By-Laws that it may be lawful for them to
make; and generally to do and perform all acts that it may be legal for a
Board of Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of the City
of Columbus, Ohio, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency; and shall have the power to
establish or change the location of any branch or branches of this Association
to any other location, without the approval of the shareholders but subject to
the approval of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than 10 percent of the stock
of this Association, may call a special meeting of shareholders at any time.
Unless otherwise provided by the laws of the United States, a notice of the
time, place and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least ten days prior to the date of such meeting to each shareholder of record
at his address as shown upon the books of this Association.
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<PAGE>
TENTH. Every person who is or was a Director, officer or employee of the
Association or of any other corporation which he served as a Director, officer
or employee at the request of the Association as part of his regularly
assigned duties may be indemnified by the Association in accordance with the
provisions of this paragraph against all liability (including, without
limitation, judgments, fines, penalties and settlements) and all reasonable
expenses (including, without limitation, attorneys' fees and investigative
expenses) that may be incurred or paid by him in connection with any claim,
action, suit or proceeding, whether civil, criminal or administrative (all
referred to hereafter in this paragraphs as "Claims") or in connection with
any appeal relating thereto in which he may become involved as a party or
otherwise or with which he may be threatened by reason of his being or having
been a Director, officer or employee of the Association or such other
corporation, or by reason of any action taken or omitted by him in his
capacity as such Director, officer or employee, whether or not he continues to
be such at the time such liability or expenses are incurred, provided that
nothing contained in this paragraph shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the
time such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings
of the Comptroller of the Currency or other appropriate supervisory or
regulatory authority, and provided further that there shall be no
indemnification of directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or
action instituted by an appropriate regulatory agency which proceeding or
action results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association. Every person who may be indemnified under the provisions of
this paragraph and who has been wholly successful on the merits with respect
to any Claim shall be entitled to indemnification as of right. Except as
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<PAGE>
provided in the preceding sentence, any indemnification under this paragraph
shall be at the sole discretion of the Board of Directors and shall be made
only if the Board of Directors or the Executive Committee acting by a quorum
consisting of Directors who are not parties to such Claim shall find or if
independent legal counsel (who may be the regular counsel of the Association)
selected by the Board of Directors or Executive Committee whether or not a
disinterested quorum exists shall render their opinion that in view of all of
the circumstances then surrounding the Claim, such indemnification is
equitable and in the best interests of the Association. Among the
circumstances to be taken into consideration in arriving at such a finding or
opinion is the existence or non-existence of a contract of insurance or
indemnity under which the Association would be wholly or partially reimbursed
for such indemnification, but the existence or non-existence of such insurance
is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to
such finding or opinion, no indemnification under this paragraph shall be made
unless the Board of Directors or the Executive Committee acting by a quorum
consisting of Directors who are not parties to such Claim shall find or if
independent legal counsel (who may be the regular counsel of the Association)
selected by the Board of Directors or Executive Committee whether or not a
disinterested quorum exists shall render their opinion that the Director,
officer or employee acted in good faith in what he reasonably believed to be
the best interests of the Association or such other corporation and further in
the case of any criminal action or proceeding, that the Director, officer or
employee reasonably believed his conduct to be lawful. Determination of any
Claim by judgment adverse to a Director, officer or employee by settlement
with or without Court approval or conviction upon a plea of guilty or of
nolocontendere or its equivalent shall not create a presumption that a
Director, officer or employee failed to meet the standards of conduct set
forth in this paragraph. Expenses incurred with respect to any Claim may be
advanced by the Association prior to the final disposition thereof upon
receipt of an undertaking
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<PAGE>
satisfactory to the Association by or on behalf of the recipient to repay such
amount unless it is ultimately determined that he is entitled to
indemnification under this paragraph. The rights of indemnification provided
in this paragraph shall be in addition to any rights to which any Director,
officer or employee may otherwise be entitled by contract or as a matter of
law.
Every person who shall act as a Director, officer or employee of this
Association shall be conclusively presumed to be doing so in reliance upon the
right of indemnification provided for in this paragraph.
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of
a majority of the stock of this Association, unless the vote of the holders of
a greater amount of stock is required by law, and in that case by the vote of
the holders of such greater amount.
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<PAGE>
Exhibit 4
BY-LAWS
-------
OF
--
BANK ONE, COLUMBUS, NATIONAL ASSOCIATION
----------------------------------------
ARTICLE I
---------
MEETING OF SHAREHOLDERS
-----------------------
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the Shareholders
of the Bank for the election of Directors and for the transaction of such
business as may properly come before the meeting shall be held at its main
banking house, or other convenient place duly authorized by the Board of
Directors, on the third Monday of January of each year, or on the next
succeeding banking day, if the day fixed falls on a legal holiday. If from
any cause, an election of directors is not made on the day fixed for the
regular meeting of shareholders or, in the event of a legal holiday, on the
next succeeding banking day, the Board of Directors shall order the election
to be held on some subsequent day, as soon thereafter as practicable,
according to the provisions of law; and notice thereof shall be given in the
manner herein provided for the annual meeting. Notice of such annual meeting
shall be given by or under the direction of the Secretary or such other
officer as may be designated by the Chief Executive Officer by first-class
mail, postage prepaid, to all shareholders of record of the Bank at their
respective addresses as shown upon the books of the Bank mailed not less than
ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of
this Bank may be called at any time by the Board of Directors or by any three
or more shareholders owning, in the aggregate, not less than ten percent of
the stock of this Bank. The notice of any special meeting of the shareholders
called by the Board of Directors, stating the time, place and purpose of the
meeting, shall be given by or under the direction of the Secretary, or such
other officer as is designated by the Chief Executive Officer, by first-class
mail, postage prepaid, to all shareholders of record of the Bank at their
respective addresses as shown upon the books of the Bank, mailed not less than
ten days prior to the date fixed for such meeting.
Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
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<PAGE>
SECTION 1.03. SECRETARY OF SHAREHOLDERS' MEETING. The Board of Directors may
designate a person to be the Secretary of the meetings of shareholders. In the
absence of a presiding officer, as designated in these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a Secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as Secretary
of the meeting.
The Secretary of the meetings of shareholders shall cause the returns
made by the judges and election and other proceedings to be recorded in the
minute book of the Bank. The presiding officer shall notify the
directors-elect of their election and to meet forthwith for the organization
of the new board.
The minutes of the meeting shall be signed by the presiding officer and
the Secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many
as three shareholders to be judges of the election, who shall hold and conduct
the same, and who shall, after the election has been held, notify, in writing
over their signatures, the secretary of the shareholders' meeting of the
result thereof and the names of the Directors elected; provided, however, that
upon failure for any reason of any judge or judges of election, so appointed
by the directors, to serve, the presiding officer of the meeting shall appoint
other shareholders or their proxies to fill the vacancies. The judges of
election at the request of the chairman of the meeting, shall act as tellers
of any other vote by ballot taken at such meeting, and shall notify, in
writing over their signatures, the secretary of the Board of Directors of the
result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall
have the right to vote the number of shares of record in his name for as many
persons as there are Directors to be elected, or to cumulate such shares as
provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in his name. Shareholders may vote by proxy duly authorized
in writing. All proxies used at the annual meeting shall be secured for that
meeting only, or any adjournment thereof, and shall be dated, and if not dated
by the shareholder, shall be dated as of the date of receipt thereof. No
officer or employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or
by proxy, shall constitute a quorum for the transaction of business at any
meeting of shareholders, but shareholders present at any meeting and
constituting less than a quorum may, without further notice, adjourn the
meeting from time to time until a quorum is obtained. A majority of the votes
cast shall decide every question or matter submitted to the shareholders at
any meeting, unless otherwise provided by law or by the Articles of
Association.
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<PAGE>
ARTICLE II
----------
DIRECTORS
---------
SECTION 2.01. MANAGEMENT OF THE BANK. The business of the Bank shall be
managed by the Board of Directors. Each director of the Bank shall be the
beneficial owner of a substantial number of shares of BANC ONE CORPORATION and
shall be employed either in the position of Chief Executive Officer or active
leadership within his or her business, professional or community interest
which shall be located within the geographic area in which the Bank operates,
or as an executive officer of the Bank. A director shall not be eligible for
nomination and re-election as a director of the Bank if such person's
executive or leadership position within his or her business, professional or
community interests which qualifies such person as a director of Bank
terminates. The age of 70 is the mandatory retirement age as a director of
the Bank. When a person's eligibility as director of the Bank terminates,
whether because of change in share ownership, position, residency or age,
within 30 days after such termination, such person shall submit his
resignation as a director to be effective at the pleasure of the Board
provided, however, that in no event shall such person be nominated or elected
as a director. Provided, however, following a person's retirement or
resignation as a director because of the age limitations herein set forth with
respect to election or re-election as a director, such person may, in special
or unusual circumstances, and at the discretion of the Board, be elected by
the directors as a Director Emeritus of the Bank for a limited period of time.
A Director Emeritus shall have the right to participate in board meetings but
shall be without the power to vote and shall be subject to re-election by the
Board at its organizational meeting following the Bank's annual meeting of
shareholders.
SECTION 2.02. QUALIFICATIONS. Each director shall have the qualification
prescribed by law. No person elected a director may exercise any of the
powers of his office until he has taken the oath of such office.
SECTION 2.03. TERM OF OFFICE/VACANCIES. A director shall hold office until
the annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to his prior
death, resignation, or removal from office. Whenever any vacancy shall occur
among the directors, the remaining directors shall constitute the directors of
the Bank until such vacancy is filled by the remaining directors, and any
director so appointed shall hold office for the unexpired term of his or her
successor. Notwithstanding the foregoing, each director shall hold office and
serve at the pleasure of the Board.
SECTION 2.04. ORGANIZATION MEETING. The directors elected by the share-
holders shall meet for organization of the new board at the time fixed by the
presiding
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<PAGE>
officer of the annual meeting. If at the time fixed for such meeting there is
no quorum present, the Directors in attendance may adjourn from time to time
until a quorum is obtained. A majority of the number of Directors elected by
the shareholders shall constitute a quorum for the transaction of business.
SECTION 2.05. REGULAR MEETINGS. The regular meetings of the Board of
Directors shall be held on the third Monday of each calendar month excluding
March and July, which meeting will be held at 4:00 p.m. When any regular
meeting of the Board falls on a holiday, the meeting shall be held on such
other day as the Board may previously designate or should the Board fail to so
designate, on such day as the Chairman of the Board of President may fix.
Whenever a quorum is not present, the directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the Bylaws for the next
succeeding regular meeting of the Board.
SECTION 2.06. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board or President, or at the
request of two or more Directors. Any special meeting may be held at such
place in Franklin County, Ohio, and at such time as may be fixed in the call.
Written or oral notice shall be given to each Director not later than the day
next preceding the day on which special meeting is to be held, which notice
may be waived in writing.
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<PAGE>
The presence of a Director at any meeting of the Board shall be deemed a
waiver of notice thereof by him. Whenever a quorum is not present the
Directors in attendance shall adjourn the special meeting from day to day
until a quorum is obtained.
SECTION 2.07. QUORUM. A majority of the Directors shall constitute a quorum
at any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as
herein defined, but at least one-third and not less than two of the authorized
number of Directors are present at a meeting of the Directors, business of the
Bank may be transacted and matters before the Board approved or disapproved by
the unanimous vote of the Directors present.
SECTION 2.08. COMPENSATION. Each member of the Board of Directors shall
receive such fees for, and transportation expenses incident to, attendance at
Board and Board Committee Meetings and such fees for service as a Director
irrespective of meeting attendance as from time to time are fixed by
resolution of the Board; provided, however, that payment hereunder shall not
be made to a Director for meetings attended and/or Board service which are not
for the Bank's sole benefit and which are concurrent and duplicative with
meetings attended or board service for an affiliate of the Bank for which the
Director receives payment; and provided further, that payment hereunder shall
not be made in the case of any Director in the regular employment of the Bank
or of one of its affiliates.
SECTION 2.09. EXECUTIVE COMMITTEE. There shall be a standing committee of
the Board of Directors known as the Executive Committee which shall possess
and exercise, when the Board is not in session, all powers of the Board that
may lawfully be delegated. The Executive Committee shall also exercise the
powers of the Board of Directors in accordance with the Provisions of the
"Employees Retirement Plan" and the "Agreement and Declaration of Trust" as
the same now exist or may be amended hereafter. The Executive Committee shall
consist of not fewer than four board members, including the Chairman of the
Board and President of the Bank, one of whom, as hereinafter required by these
By-laws, shall be the Chief Executive Officer. The other members of the
Committee shall be appointed by the Chairman of the Board or by the President,
with the approval of the Board and shall continue as members of the Executive
Committee until their successors are appointed, provided, however, that any
member of the Executive Committee may be removed by the Board upon a majority
vote thereof at any regular or special meeting of the Board. The Chairman or
President shall fill any vacancy in the Committee by the appointment of
another Director, subject to the approval of the Board of Directors. The
regular meetings of the Executive Committee shall be held on a regular basis
as scheduled by the Board of Directors. Special meetings of the Executive
Committee shall be held at
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<PAGE>
the call of the Chairman or President or any two members thereof at such time
or times as may be designated. In the event of the absence of any member or
members of the Committee, the presiding member may appoint a member or members
of the Board to fill the place or places of such absent member or members to
serve during such absence. Not fewer than three members of the Committee must
be present at any meeting of the Executive Committee to constitute a quorum,
provided, however that with regard to any matters on which the Executive
Committee shall vote, a majority of the Committee members present at the
meeting at which a vote is to be taken shall not be officers of the Bank and,
provided further, that if, at any meeting at which the Chairman of the Board
and President are both present, Committee members who are not officers are not
in the majority, then the Chairman of the Board or President, which ever of
such officers is not also the Chief Executive Officer, shall not be eligible
to vote at such meeting and shall not be recognized for purposes of
determining if a quorum is present at such meeting. When neither the Chairman
of the Board nor President are present, the Committee shall appoint a
presiding officer. The Executive Committee shall keep a record of its
proceedings and report its proceedings and the action taken by it to the Board
of Directors.
SECTION 2.10 COMMUNITY REINVESTMENT ACT AND COMPLIANCE POLICY COMMITTEE.
There shall be a standing committee of the Board of Directors known as the
Community Reinvestment Act and Compliance Policy Committee the duties of which
shall be, at least once in each calendar year, to review, develop and
recommend policies and programs related to the Bank's Community Reinvestment
Act Compliance and regulatory compliance with all existing statutes, rules and
regulations affecting the Bank under state and federal law. Such Committee
shall provide and promptly make a full report of such review of current Bank
policies with regard to Community Reinvestment Act and regulatory compliance
in writing to the Board, with recommendations, if any, which may be necessary
to correct any unsatisfactory conditions. Such Committee may, in its
discretion, in fulfilling its duties, utilize the Community Reinvestment Act
officers of the Bank, Banc One Ohio Corporation and Banc One Corporation and
may engage outside Community Reinvestment Act experts, as approved by the
Board, to review, develop and recommend policies and programs as herein
required. The Community Reinvestment Act and regulatory compliance policies
and procedures established and the recommendations made shall be consistent
with, and shall supplement, the Community Reinvestment Act and regulatory
compliance programs, policies and procedures of Banc One Corporation and Banc
One Ohio Corporation. The Community Reinvestment Act and Compliance Policy
Committee shall consist of not fewer than four board members, one of whom
shall be the Chief Executive Officer and a majority of whom are not officers
of the Bank. Not fewer than three members of the Committee, a majority of
whom are not officers of the Bank, must be present to constitute a quorum. The
Chairman of the Board or President of the Bank, whichever is not the Chief
Executive Officer, shall be an ex
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<PAGE>
officio member of the Community Reinvestment Act and Compliance Policy
Committee. The Community Reinvestment Act and Compliance Policy Committee,
whose chairman shall be appointed by the Board, shall keep a record of its
proceedings and report its proceedings and the action taken by it to the Board
of Directors.
SECTION 2.11. TRUST COMMITTEES. There shall be two standing Committees known
as the Trust Management Committee and the Trust Examination Committee
appointed as hereinafter provided.
SECTION 2.12. OTHER COMMITTEES. The Board of Directors may appoint such
special committees from time to time as are in its judgment necessary in the
interest of the Bank.
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<PAGE>
ARTICLE III
-----------
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
----------------------------------------
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The officers of the Bank shall include a President, Secretary and
Security Officer and may include a Chairman of the Board, one or more
Vice Chairmen, one or more Vice Presidents (which may include one or
more Executive Vice Presidents and/or Senior Vice Presidents) and one
or more Assistant Secretaries, all of whom shall be elected by the
Board. All other officers may be elected by the Board or appointed in
writing by the Chief Executive Officer. The salaries of all officers
elected by the Board shall be fixed by the Board. The Board from
time-to-time shall designate the President or Chairman of the Board to
serve as the Bank's Chief Executive Officer.
(b) The Chairman of the Board, if any, and the President shall be elected
by the Board from their own number. The President and Chairman of the
Board shall be re-elected by the Board annually at the organizational
meeting of the Board of Directors following the Annual Meeting of
Shareholders. Such officers as the Board shall elect from their own
number shall hold office from the date of their election as officers
until the organization meeting of the Board of Directors following the
next Annual Meeting of Shareholders, provided, however, that such
officers may be relieved of their duties at any time by action of the
Board in which event all the powers incident to their office shall
immediately terminate.
(c) Except as provided in the case of the elected officers who are members
of the Board, all officers, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by
law or these By-laws, the Board assigns to Chief Executive Officer
and/or his
designees the authority to appoint and dismiss any elected or
appointed officer or other member of the Bank's management staff and
other employees of the Bank, as the person in charge of and
responsible for any branch office, department, section, operation,
function, assignment or duty in the Bank.
(d) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chief Executive Officer, and such
other persons in the employment of the Bank who, pursuant to written
appointment and authorization by a duly authorized officer of the
Bank,
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<PAGE>
perform management functions and have management responsibilities. Any
two or more offices may be held by the same person except that no
person shall hold the office of Chairman of the Board and/or President
and at the same time also hold the office of Secretary.
(e) The Chief Executive Officer of the Bank and any other officer of the
Bank, to the extent that such officer is authorized in writing by the
Chief Executive Officer, may appoint persons other than officers who
are in the employment of the Bank to serve in management positions and
in connection therewith, the appointing officer may assign such title,
salary, responsibilities and functions as are deemed appropriate by
him, provided, however, that nothing contained herein shall be
construed as placing any limitation on the authority of the Chief
Executive Officer as provided in this and other sections of these
By-Laws.
SECTION 3.02. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the
Bank shall have general and active management of the business of the Bank and
shall see that all orders and resolutions of the Board of Directors are
carried into effect. Except as otherwise prescribed or limited by these
By-Laws, the Chief Executive Officer shall have full right, authority and
power to control all personnel, including elected and appointed officers, of
the Bank, to employ or direct the employment of such personnel and officers as
he may deem necessary, including the fixing of salaries and the dismissal of
them at pleasure, and to define and prescribe the duties and responsibility of
all Officers of the Bank, subject to such further limitations and directions
as he may from time-to-time deem proper. The Chief Executive Officer shall
perform all duties incident to his office and such other and further duties,
as may, from time-to-time, be required of him by the Board of Directors or the
shareholders. The specification of authority in these By-Laws wherever and to
whomever granted shall not be construed to limit in any manner the general
powers of delegation granted to the Chief Executive Officer in conducting the
business of the Bank. The Chief Executive Officer or, in his absence, the
Chairman of the Board or President of the Bank, as designated by the Chief
Executive Officer, shall preside at all meetings of shareholders and meetings
of the Board. In the absence of the Chief Executive Officer, such officer as
is designated by the Chief Executive Officer shall be vested with all the
powers and perform all the duties of the Chief Executive Officer as defined by
these By-Laws. When designating an officer to serve in his absence, the Chief
Executive Officer shall select an officer who is a member of the Board of
Directors whenever such officer is available.
SECTION 3.03. POWERS OF OFFICERS AND MANAGEMENT STAFF. The Chief Executive
Officer, the Chairman of the Board, the President, and those officers so
designated and authorized by the Chief Executive Officer are authorized for an
on
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<PAGE>
behalf of the Bank, and to the extent permitted by law, to make loans and
discounts; to purchase or acquire drafts, notes, stock, bonds, and other
securities for investment of funds held by the Bank; to execute and purchase
acceptances; to appoint, empower and direct all necessary agents and
attorneys; to sign and give any notice required to be given; to demand payment
and/or to declare due for any default any debt or obligation due or payable to
the Bank upon demand or authorized to be declared due; to foreclose any
mortgages, to exercise any option, privilege or election to forfeit,
terminate, extend or renew any lease; to authorize and direct any proceedings
for the collection of any money or for the enforcement of any right or
obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases
and discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothe- cate any securities or any stocks, bonds, notes or any property
real or personal held or owned by the Bank, or to rediscount any notes or
other obligations held or owned by the Bank, to employ or direct the
employment of all personnel, including elected and appointed officers, and the
dismissal of them at pleasure, and in furtherance of and in addition to the
powers hereinabove set forth to do all such acts and to take all such
proceedings as in his judgment are necessary and incidental to the operation
of the Bank.
Other persons in the employment of the Bank, including but not limited to
officers and other members of the management staff, may be authorized by the
Chief Executive Officer, or by an officer so designated and authorized by the
chief Executive Officer, to perform the powers set forth above, subject,
however, to such limitations and conditions as are set forth in the
authorization given to such persons.
SECTION 3.04. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control
of the records of the Bank and, subject to the direction of the Chief
Executive Officer, shall undertake other duties and functions usually
performed by a corporate secretary. Other officers may be designated by the
Chief Executive Officer or the Board of Directors as Assistant Secretary to
perform the duties of the Secretary.
SECTION 3.05. EXECUTION OF DOCUMENTS. The Chief Executive Officer, Chairman
of the Board, President, any officer being a member of the Bank's management
staff who is also a person in charge of and responsible for any department
within the Bank and any other officer to the extent such officer is so
designated and authorized by the Chief Executive Officer, the Chairman of the
Board, the President, or any other officer who is a member of the Bank's
management
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<PAGE>
staff who is in charge of and responsible for any department within the Bank,
are hereby authorized on behalf of the Bank to sell, assign, lease, mortgage,
transfer, deliver and convey any real or personal property now or hereafter
owned by or standing in the name of the Bank or its nominee, or held by this
Bank as collateral security, and to execute and deliver such deeds, contracts,
leases, assignments, bills of sale, transfers or other papers or documents as
may be appropriate in the circumstances; to execute any loan agreement,
security agreement, commitment letters and financing statements and other
documents on behalf of the Bank as a lender; to execute purchase orders,
documents and agreements entered into by the Bank in the ordinary course of
business, relating to purchase, sale, exchange or lease of services, tangible
personal property, materials and equipment for the use of the Bank; to execute
powers of attorney to perform specific or general functions in the name of or
on behalf of the Bank; to execute promissory notes or other instruments
evidencing debt of the Bank; to execute instruments pledging or releasing
securities for public funds, documents submitting public fund bids on behalf
of the Bank and public fund contracts; to purchase and acquire any real or
personal property including loan portfolios and to execute and deliver such
agreements, contracts or other papers or documents as may be appropriate in
the circumstances; to execute any indemnity and fidelity bonds, proxies or
other papers or documents of like or different character necessary, desirable
or incidental to the conduct of its banking business; to execute and deliver
settlement agreements or other papers or documents as may be appropriate in
connection with a dismissal authorized by Section 3.01(c) of these By-laws; to
execute agreements, instruments, documents, contracts or other papers of like
or difference character necessary, desirable or incidental to the conduct of
its banking business; and to execute and deliver partial releases from and
discharges or assignments of mortgages, financing statements and assignments
or surrender of insurance policies, now or hereafter held by this Bank.
The Chief Executive Officer, Chairman of the Board, President, any
officer being a member of the Bank's management staff who is also a person in
charge of and responsible for any department within the Bank, and any other
officer of the Bank so designated and authorized by the Chief Executive
Officer, Chairman of the Board, President or any officer who is a member of
the Bank's management staff who is in charge of and responsible for any
department within the Bank are authorized for and on behalf of the Bank to
sign and issue checks, drafts, and certificates of deposit; to sign and
endorse bills of exchange, to sign and countersign foreign and domestic
letters of credit, to receive and receipt for payments of principal, interest,
dividends, rents, fees and payments of every kind and description paid to the
Bank, to sign receipts for property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or
other securities, to sign certifications of checks, to endorse and deliver
checks, drafts, warrants, bills, notes, certificates of deposit and
acceptances in all business transactions of the Bank.
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<PAGE>
Other persons in the employment of the Bank and of its subsidiaries, including
but not limited to officers and other members of the management staff, may be
authorized by the Chief Executive Officer, Chairman of the Board, President or
by an officer so designated by the Chief Executive Officer, Chairman of the
Board, or President to perform the acts and to execute the documents set forth
above, subject, however, to such limitations and conditions as are contained
in the authorization given to such person.
SECTION 3.06. PERFORMANCE BOND. All officers and employees of the Bank shall
be bonded for the honest and faithful performance of their duties for such
amount as may be prescribed by the Board of Directors.
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<PAGE>
ARTICLE IV
----------
TRUST DEPARTMENT
----------------
SECTION 4.01. TRUST DEPARTMENT. Pursuant to the fiduciary powers granted to
this Bank under the provisions of Federal Law and Regulations of the
Comptroller of the Currency, there shall be maintained a separate Trust
Department of the Bank, which shall be operated in the manner specified
herein.
SECTION 4.02. TRUST MANAGEMENT COMMITTEE. There shall be a standing
Committee known as the Trust Management Committee, consisting of at least five
members, a majority of whom shall not be officers of the Bank. The Committee
shall consist of the Chairman of the Board who shall be Chairman of the Com-
mittee, the President, and at least three other Directors appointed by the
Board of Directors and who shall continue as members of the Committee until
their successors are appointed. Any vacancy in the Trust Management Committee
may be filled by the Board at any regular or special meeting. In the event of
the absence of any member or members, such Committee may, in its discretion,
appoint members of the Board to fill the place of such absent members to serve
during such absence. Three members of the Committee shall constitute a
quorum. Any member of the Committee may be removed by the Board by a majority
vote at any regular or special meeting of the Board. The Committee shall meet
at such times as it may determine or at the call of the Chairman, or President
or any two members thereof.
The Trust Management Committee, under the general direction of the Board
of Directors, shall supervise the policy of the Trust Department which shall
be formulated and executed in accordance with Law, Regulations of the
Comptroller of the Currency, and sound fiduciary principles.
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<PAGE>
SECTION 4.03. TRUST EXAMINATION COMMITTEE. There shall be a standing Commit-
tee known as the Trust Examination Committee, consisting of three directors
appointed by the Board of Directors and who shall continue as members of the
committee until their successors are appointed. Such members shall not be
active officers of the Bank. Two members of the Committee shall constitute a
quorum. Any member of the Committee may be removed by the Board by a majority
vote at any regular or special meeting of the Board. The Committee shall meet
at such times as it may determine or at the call of two members thereof.
This Committee shall, at least once during each calendar year and within
fifteen months of the last such audit, or at such other time(s) as may be
required by Regulations of the Comptroller of the Currency, make suitable
audits of the Trust Department or cause suitable audits to be made by auditors
responsible only to the Board of Directors, and at such time shall ascertain
whether the Department has been administered in accordance with Law,
Regulations of the Comptroller of the Currency and sound fiduciary principles.
The Committee shall promptly make a full report of such audits in writing
to the Board of Directors of the Bank, together with a recommendation as to
what action, if any, may be necessary to correct any unsatisfactory condition.
A report of the audits together with the action taken thereon shall be noted
in the Minutes of the Board of Directors and such report shall be a part of
the records of this Bank.
SECTION 4.04. MANAGEMENT. The Trust Department shall be under the management
and supervision of an officer of the Bank or of the trust affiliate of the
Bank designated by and subject to the advice and direction of the Chief
Executive Officer. Such officer having supervisory responsibility over the
Trust Department shall do or cause to be done all things necessary or proper
in carrying on the business of the Trust Department in accordance with
provisions of law and applicable regulations.
SECTION 4.05. HOLDING OF PROPERTY. Property held by the Trust Department may
be carried in the name of the Bank in its fiduciary capacity, in the name of
Bank, or in the name of a nominee or nominees.
SECTION 4.06. TRUST INVESTMENTS. Funds held by the Bank in a fiduciary
capacity awaiting investment or distribution shall not be held uninvested or
undistributed any longer than is reasonable for the proper management of the
account and shall be invested in accordance with the instrument establishing a
fiduciary relationship and local law. Where such instrument does not specify
the character or class of investments to be made and does not vest in the Bank
any discretion in the matter, funds held pursuant to such instrument shall be
invested in any investment which
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<PAGE>
corporate fiduciaries may invest under local law.
The investments of each account in the Trust Department shall be kept
separate from the assets of the Bank, and shall be placed in the joint custody
or control of not less than two of the officers or employees of the Bank or of
the trust affiliate of the Bank designated for the purpose by the Trust
Management Committee.
SECTION 4.07. EXECUTION OF DOCUMENTS. The Chief Executive Officer, Chairman
of the Board, President, any officer of the Trust Department, and such other
officers of the trust affiliate of the Bank as are specifically designated and
authorized by the Chief Executive Officer, the President, or the officer in
charge of the Trust Department, are hereby authorized, on behalf of this Bank,
to sell, assign, lease, mortgage, transfer, deliver and convey any real
property or personal property and to purchase and acquire any real or personal
property and to execute and deliver such agreements, contracts, or other
papers and documents as may be appropriate in the circumstances for property
now or hereafter owned by or standing in the name of this Bank, or its
nominee, in any fiduciary capacity, or in the name of any principal for whom
this Bank may now or hereafter be acting under a power of attorney, or as
agent and to execute and deliver partial releases from any discharges or
assignments or mortgages and assignments or surrender of insurance policies,
to execute and deliver deeds, contracts, leases, assignments, bills of sale,
transfers or such other papers or documents as may be appropriate in the
circumstances for property now or hereafter held by this Bank in any fiduciary
capacity or owned by any principal for whom this Bank may now or hereafter be
acting under a power of attorney or as agent; to execute and deliver
settlement agreements or other papers or documents as may be appropriate in
connection with a dismissal authorized by Section 3.01(c) of these By-laws;
provided that the signature of any such person shall be attested in each case
by any officer of the Trust Department or by any other person who is
specifically authorized by the Chief Executive Officer, the President or the
officer in charge of the Trust Department.
The Chief Executive Officer, Chairman of the Board, President, any
officer of the Trust Department and such other officers of the trust affiliate
of the Bank as are specifically designated and authorized by the Chief
Executive Officer, the President, or the officer in charge of the Trust
Department, or any other person or corporation as is specifically authorized
by the Chief Executive Officer, the President or the officer in charge of the
Trust Department, are hereby authorized on behalf of this Bank, to sign any
and all pleadings and papers in probate and other court proceedings, to
execute any indemnity and fidelity bonds, trust agreements, proxies or other
papers or documents of like or different character necessary, desirable or
incidental to the appointment of the Bank in any fiduciary capacity and the
conduct
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<PAGE>
of its business in any fiduciary capacity; also to foreclose any mortgage, to
execute and deliver receipts for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank; to
sign receipts for property acquired or entrusted to the Bank; also to sign
stock or bond certificates on behalf of this Bank in any fiduciary capacity
and on behalf of this Bank as transfer agent or registrar; to guarantee the
genuineness of signatures on assignments of stocks, bonds or other securities,
and to authenticate bonds, debentures, land or lease trust certificates or
other forms of security issued pursuant to any indenture under which this Bank
now or hereafter is acting as Trustee. Any such person, as well as such other
persons as are specifically authorized by the Chief Executive Officer or the
officer in charge of the Trust Department, may sign checks, drafts and orders
for the payment of money executed by the Trust Department in the course of its
business.
SECTION 4.08. VOTING OF STOCK. The Chairman of the Board, President, any
officer of the Trust Department, any officer of the trust affiliate of the
Bank and such other persons as may be specifically authorized by Resolution of
the Trust Management Committee or the Board of Directors, may vote shares of
stock of a corporation of record on the books of the issuing company in the
name of the Bank or in the name of the Bank as fiduciary, or may grant proxies
for the voting of such stock of the granting if same is permitted by the
instrument under which the Bank is acting in a fiduciary capacity, or by the
law applicable to such fiduciary account. In the case of shares of stock
which are held by a nominee of the Bank, such shares may be voted by such
person(s) authorized by such nominee.
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<PAGE>
ARTICLE V
---------
STOCKS AND STOCK CERTIFICATES
-----------------------------
SECTION 5.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of
the Board, the President, or a Vice President (which signature may be
engraved, printed or impressed), and shall be signed manually by the
Secretary, or any other officer appointed by the Chief Executive Officer for
that purpose.
In case any such officer who has signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its
fact that the stock represented thereby is transferable only upon the books of
the Bank properly endorsed and shall recite such other information as is
required by law and deemed appropriate by the Board. The corporate seal may
be facsimile engraved or printed.
SECTION 5.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank
shall be transferable only upon the stock transfer books of the Bank and
except as hereinafter provided, no transfer shall be made or new certificates
issued except upon the surrender for cancellation of the certificate or
certificates previously issued therefor. In the case of the loss, theft, or
destruction of any certificate, a new certificate may be issued in place of
such certificate upon the furnishing of any affidavit setting forth the
circumstances of such loss, theft, or destruction and indemnity satisfactory
to the Chairman of the Board, the President, or a Vice President. The Board
of Directors, or the Chief Executive Officer, may authorize the issuance of a
new certificate therefor without the furnishing of indemnity. Stock Transfer
Books, in which all transfers of stock shall be recorded, shall be provided.
The stock transfer books may be closed for a reasonable period and under
such conditions as the Board of Directors may at any time determine for any
meeting of shareholders, the payment of dividends or any other lawful purpose.
In lieu of closing the transfer books, the Board may, in its discretion, fix a
record date and hour constituting a reasonable period prior to the day
designated for the holding of any meeting of the shareholders or the day
appointed for the payment of any dividend or for any other purpose at the time
as of which shareholders entitled to notice of and to vote at any such meeting
or to receive such dividend or to be treated as shareholders for such other
purpose shall be determined, and only shareholders of record at such time
shall be entitled to notice of or to vote at such meeting or to receive such
dividends or to be treated as shareholders for such other purpose.
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<PAGE>
ARTICLE VI
----------
MISCELLANEOUS PROVISIONS
------------------------
SECTION 6.01. SEAL. The impression made below is an impression of the seal
adopted by the Board of Directors of BANK ONE, COLUMBUS, NATIONAL ASSOCIATION.
The Seal may be affixed by any officer of the Bank to any document executed by
an authorized officer on behalf of the Bank, and any officer may certify any
act, proceedings, record, instrument or authority of the Bank.
SECTION 6.02. BANKING HOURS. Subject to ratification by the Executive
Committee, the Bank and each of its Branches shall be open for business on
such days and during such hours as the Chief Executive Officer of the Bank
shall, from time to time, prescribe.
SECTION 6.03. MINUTE BOOK. The organization papers of this Bank, the
Articles of Association, the returns of the judges of elections, the By-Laws
and any amendments thereto, the proceedings of all regular and special
meetings of the shareholders and of the Board of Directors, and reports of the
committees of the Board of Directors shall be recorded in the minute book of
the Bank. The minutes of each such meeting shall be signed by the presiding
Officer and attested by the secretary of the meetings.
SECTION 6.04. AMENDMENT OF BY-LAWS. These By-Laws may be amended by vote of
a majority of the Directors.
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<PAGE>
EXHIBIT 6
Securities and Exchange Commission
Washington, D.C. 20549
CONSENT
-------
The undersigned, designated to act as Trustee under the Indenture for Old
National Bancorp described in the attached Statement of Eligibility and
Qualification, does hereby consent that reports of examinations by Federal,
State, Territorial, or District Authorities may be furnished by such
authorities to the Commission upon the request of the Commission.
This Consent is given pursuant to the provision of Section 321(b) of the Trust
Indenture Act of 1939, as amended.
Bank One, NA
f/k/a Bank One, Columbus, NA
Dated: July 3, 1997
By: /s/ Jeff Eubank
--------------------------
Jeff Eubank
Authorized Signer
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