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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: October 4, 1995 Commission File Number 1-2979
NORWEST CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 41-0449260
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479 (612) 667-1234
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(Address of principal executive (Zip Code) (Registrant's telephone
offices) number, including area code)
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Item 7. FINANCIAL STATEMENTS AND EXHIBITS
Exhibits:
4(a) Form of Distribution Agreement.
4(b) Form of Fixed Rate Retail Medium-Term Note security.
4(c) Indenture dated as of September 15, 1995 between the Corporation
and Citibank, N.A.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
NORWEST CORPORATION
Registrant
Dated: October 4, 1995 By /s/ Charles D. White
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Charles D. White, Senior Vice President
and Treasurer
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NORWEST CORPORATION
INDEX TO EXHIBITS
Form of
Exhibit No. Exhibit Filing
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4(a) Form of Distribution Agreement . . . . . . . . . Electronic
Transmission
4(b) Form of Fixed Rate Retail Medium-Term Note
security . . . . . . . . . . . . . . . . . . . . Electronic
Transmission
4(c) Indenture dated as of September 15, 1995
between the Corporation and Citibank, N.A. . . . Electronic
Transmission
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EXHIBIT 4(a)
[Series I Notes]
NORWEST CORPORATION
RETAIL MEDIUM-TERM NOTE-SM-SECURITIES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
October 4, 1995
Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
Dear Sirs:
Norwest Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Smith Barney Inc. (the "Agent") with respect to the
issue and sale by the Company of its Retail Medium-Term Note securities
described herein (the "Notes"). The Notes are to be issued pursuant to an
indenture (the "Indenture") dated as of September 15, 1995, as amended from time
to time, between the Company and Citibank, N.A., as trustee (the "Trustee"). As
of the date hereof, the Company has authorized the issuance and sale of up to
U.S. $300,000,000 aggregate initial public offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such foreign
currencies or foreign currency units as the Company shall designate at the time
of issuance) of Notes 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 through
or to 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 Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agent will act as agent of the Company
in soliciting Note purchases, and (as may from time to time be agreed to by the
Company and the Agent) to the Agent as principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. 033-61045) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended, (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the SEC under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the SEC and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). Such registration statement (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) and the
prospectus constituting a part thereof, and any prospectus supplements relating
to the Notes, including all
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documents incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), or the 1933 Act or otherwise, are referred
to herein as the "Registration Statement" and the "Prospectus", respectively,
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 which is not
required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Agent for such use.
SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT OF AGENT. 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 or through any of its affiliated entities, the
Company hereby appoints the Agent as the agent for the purpose of soliciting
purchases of the Notes from the Company by others and agrees that, except as
otherwise contemplated herein, whenever the Company determines to sell Notes
directly to the Agent as principal for resale to others, it will enter into a
Terms Agreement (hereafter defined) relating to such sale in accordance with the
provisions of Section 3(b) hereof. In addition, the Agent may offer the Notes
it has purchased as principal to other dealers and may sell Notes to any dealer
at a discount, and, unless otherwise specified in an applicable Pricing
Supplement, such discount allowed to any dealer will not be in excess of the
discount to be received by the Agent. No Notes that the Company has agreed to
sell pursuant to this Agreement shall be deemed to have been purchased and paid
for or sold by the Company until such Notes shall have been delivered to the
purchaser thereof against payment by such purchaser. The Company may accept
offers to purchase Notes through an agent other than the Agent; PROVIDED,
HOWEVER, that (i) the Company shall give the Agent notice of its decision to
accept such an offer to purchase Notes promptly following such acceptance, and
(ii) any such other agent shall agree to be bound by and subject to the terms
and conditions of this Agreement binding on the Agent (including, but not
limited to, the commission schedule set forth on Schedule A).
(b) REASONABLE EFFORTS SOLICITATIONS; RIGHT TO REJECT OFFERS.
Upon receipt of instructions from the Company, the Agent will use its reasonable
efforts to solicit purchases of such principal amount of the Notes as the
Company and the Agent shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not 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 principal amount
of Notes registered pursuant to the Registration Statement. The Agent will have
no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. The Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes, 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, as a
whole or in part, and any such rejection shall not be deemed a breach of the
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
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(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In
soliciting purchases of the Notes on behalf of the Company and in performing its
other obligations hereunder (other than with respect to any purchase by the
Agent as principal pursuant to a Terms Agreement), the Agent shall act solely as
agent for the Company and not as principal. 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 the Agent and accepted by the
Company, PROVIDED, HOWEVER, that the Agent shall not have any liability to the
Company in the event 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 it has accepted, 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) notwithstanding such default, pay to the Agent any
commission to which it would be entitled in connection with such sale. The
Agent shall not have any obligation to purchase Notes from the Company as
principal, but the Agent may agree from time to time to purchase Notes as
principal. Any such purchase of Notes by the Agent as principal shall be made
in accordance with Section 3(b) hereof.
(d) RELIANCE. The Company and the Agent agree that any Notes,
the placement of which the Agent arranges, shall be placed by the Agent, and any
Notes purchased by the Agent shall be purchased, 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.
(a) 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 through the Agent as agent or to the Agent as
principal), as of the date of each delivery of Notes (whether through the Agent
as agent or to the Agent as principal) (the date of each such delivery to the
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being referred
to herein as a "Representation Date") as follows:
(i) REGISTRATION STATEMENT AND PROSPECTUS. At the time
the Registration Statement became effective, the Registration
Statement complied, and as of the applicable Representation Date 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 SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-K is filed by the
Company with the SEC and as of each Representation Date, 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. The Prospectus, as of the date
hereof, does not, and as of each Representation Date, will not,
contain 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,
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not misleading; PROVIDED, HOWEVER, that the representations and warranties
in this subsection shall not apply to statements in or omissions from the
Registration Statement or 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 Prospectus.
(ii) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the SEC, complied, or when so filed will comply, as the
case may be, in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were or
are made, not misleading.
(iii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE
INDENTURE AND THE NOTES. This Agreement and any Terms Agreement have
been duly authorized and, upon execution and delivery by the Agent,
will be a valid and binding agreement of the Company; the Indenture
has been duly authorized and, upon execution and delivery by the
Trustee, will be a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally, or by general equity principles, and
except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or foreign currency
unit judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments in foreign currency or
currency units or payments outside the United States; the Notes have
been duly and validly authorized for issuance, offer and sale pursuant
to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration therefor specified in the Prospectus or
pursuant to any Terms Agreement, the Notes will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally or
by general equity principles, and except further as enforcement
thereof may be limited by the Notes and the Indenture will be
substantially in the form heretofore delivered to the Agent and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and the Notes will be entitled to the
benefits provided by the Indenture.
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(iv) FLORIDA BLUE SKY DISCLOSURE. The Company has complied with
all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws
of Florida).
(v) INVESTMENT COMPANY ACT OF 1940. Neither the Company nor
any subsidiary of the Company is subject to registration or regulation
under the Investment Company Act of 1940, as amended.
(vi) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth
in the Registration Statement or Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending, or, to the knowledge of the Company, threatened
against or affecting, the Company or any of its subsidiaries, which might,
in the opinion of the Company, result in 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, or might materially affect the properties or assets thereof;
and there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not
been so filed.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
director or officer of the Company and delivered to the Agent or to counsel for
the Agent in connection with an offering of Notes or the sale of Notes to the
Agent as principal 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 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, the Agent agrees, as an agent of the Company, to
use its reasonable efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the Agent, as agent,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agent will forthwith suspend solicitation of
purchases 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 on the settlement date
applicable to such Note 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.
The purchase price, interest rate, maturity date and other terms
of the Notes shall be agreed upon by the Company and the Agent and set forth in
a pricing supplement to the Prospectus
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(a "Pricing Supplement") to be prepared following each acceptance by the Company
of an offer for the purchase of Notes. Except as may be otherwise provided in
such a 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. 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.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to the Agent as
principal shall be made in accordance with the terms contained herein and
pursuant to a separate agreement which will provide for the sale of such Notes
to, and the purchase and reoffering thereof by, the Agent. Each such separate
agreement (which may be an oral agreement, if confirmed in writing by facsimile
transmission or otherwise) between the Agent and the Company is herein referred
to as a "Terms Agreement". Unless the context otherwise requires, each
reference contained herein to "this Agreement" shall be deemed to include any
applicable Terms Agreement between the Company and the Agent. Each such Terms
Agreement, whether oral or in writing, shall be with respect to such information
(as applicable) as is specified in Exhibit A hereto. The Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement 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. Each Terms Agreement shall specify the principal amount of Notes to be
purchased by the Agent pursuant thereto, the price to be paid to the Company for
such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by, purchasers acting together
with the Agent in the reoffering of the Notes, and such other provisions
(including further terms of the Notes) as may be mutually agreed upon. The
Agent may utilize a selling or dealer group in connection with the resale of the
Notes purchased. Such Terms Agreement shall also specify the requirements for
the officer's certificate, opinions of counsel and comfort letter pursuant to
Sections 7(b), 7(c) and 7(d) hereof.
(c) ADMINISTRATIVE PROCEDURES. The Company and the Agent
hereby agree to the Administrative procedures with respect to the sale of Notes
set forth in Annex A hereto (the "Procedures"). The Agent and the Company agree
to perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
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 (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
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proceedings for that purpose. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give
the Agent 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 or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates of Notes), whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise, and will furnish the Agent with copies of
any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be, and will not file any such amendment or supplement or other
documents in a form to which you or your counsel shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS.
The Company will deliver to the Agent 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 may
reasonably request. The Company will furnish to the Agent as many copies of the
Prospectus (as amended or supplemented) as the Agent shall 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.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will
prepare, with respect to any Notes to be sold through or to the Agent pursuant
to this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agent and will file such Pricing Supplement pursuant
to Rule 424(b)(3) under the 1933 Act not later than the close of business of the
SEC on the fifth business day after the date on which such Pricing Supplement is
first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as
otherwise provided in subsection (k) of this Section, 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 reasonable opinion of counsel, for the Agent or
counsel for the Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary 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
reasonable 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, immediate notice shall
be given, and confirmed in writing, to the Agent to cease the solicitation of
offers to purchase the Notes in the Agent's capacity as agent and to cease sales
of any Notes the Agent may then own as principal pursuant to a Terms Agreement,
and the Company will promptly prepare and file with the SEC such amendment or
supplement, whether by filing documents pursuant to the 1934 Act, 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.
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(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION.
Except as otherwise provided in subsection (k) of this Section, 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 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.
(g) 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 (in
form complying with the provisions of Rule 158 under the 1933 Act) 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.
(h) BLUE SKY QUALIFICATIONS. The Company will endeavor, 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 and will promptly notify the Agent if at any time the Company must
make or amend a disclosure required by Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida).
(i) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(j) STAND-OFF AGREEMENT. If required pursuant to the terms of
a Terms Agreement with the Agent, between the date of any Terms Agreement and
the Settlement Date with respect to such Terms Agreement, the Company will not,
without the Agent's prior consent, offer or sell, or enter into any agreement to
sell, any debt securities of the Company with terms substantially similar to
those of the Notes which are the subject of such Terms Agreement (other than the
Notes that are to be sold pursuant to such Terms Agreement and commercial paper
in the ordinary course of business).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not
be required to comply with the provisions of subsections (e) or (f) of this
Section with respect to the Agent during any period from the time (i) the Agent
shall have suspended solicitation of purchases of the Notes in its capacity as
agent pursuant to a request from the Company and (ii) the Agent shall not then
hold
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any Notes as principal purchased pursuant to a Terms Agreement, to the time the
Company shall determine that solicitation of purchases of the Notes should be
resumed or shall subsequently enter into a new Terms Agreement with the Agent.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agent to solicit offers to purchase the
Notes as agent of the Company, the obligations of any purchasers of the Notes
sold through the Agent as agent, and any obligation of the Agent to purchase
Notes pursuant to a Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) 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 the Agent:
1. OPINION OF COMPANY COUNSEL. The opinion of Stanley S.
Stroup, Executive Vice President and General Counsel of the Company,
to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and
to conduct its business as described in the
Registration Statement, and is duly registered as a
bank holding company under the Bank Holding Company Act
of 1956, as amended; and each of Norwest Bank
Minnesota, National Association ("Norwest Bank
Minnesota"), and Norwest Bank Iowa, National
Association ("Norwest Bank Iowa"), is a national
banking association duly chartered and is in good
standing under the National Bank Act; and each of
Norwest Colorado, Inc. ("Norwest Colorado") and Norwest
Financial Services, Inc. ("Norwest Financial" and
together with Norwest Bank Minnesota, Norwest Bank Iowa
and Norwest Colorado, the "Significant Subsidiaries")
is duly organized and validly existing in good standing
under the laws of the jurisdiction of its
incorporation.
(iii) Each of the Company and each Significant
Subsidiary is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify and
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be in good standing would not have a material adverse effect on
the business, condition or properties of the Company and its
subsidiaries, taken as a whole.
(iv) All of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and
(except as provided in 12 U.S.C. Section 55)
non-assessable, and is owned by the Company, free and
clear of any perfected security interest and, to the
best of such counsel's knowledge of any other security
interests, claims, liens or encumbrances.
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(vi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized,
executed and delivered by the Trustee) constitutes a
legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors'
rights generally or by general equitable principles,
and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect
to any Notes denominated other than in U.S. dollars (or
a foreign currency or foreign currency unit judgment in
respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit
the making of payments in foreign currency or currency
units or the making of payments outside the United
States.
(vii) The Notes are in due and proper form and
have been duly established in conformity with
Section 301 of the Indenture. When the specific terms
of an issue of Notes have been fixed by an authorized
officer of the Company by executing and delivering to
the Trustee an authentication certificate supplemental
to an officers' certificate, such Notes will be duly
authorized for issuance, offer and sale pursuant to
this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration
therefor, will constitute valid and legally binding
obligations of the Company, enforceable in accordance
with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by
general equity principles, and except
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further as enforcement thereof may be limited by (A) requirements
that a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in
foreign currency or currency units or payments outside the United
States, and each holder of Notes will be entitled to the benefits
of the Indenture.
(viii) The statements in the Prospectus under the
captions "Description of Debt Securities", "Plan of
Distribution" and "Description of Notes", insofar as
they purport to summarize certain provisions of
documents specifically referred to therein, are
accurate summaries of such provisions.
(ix) The Indenture is qualified under the 1939
Act.
(x) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or, to
the best of such counsel's knowledge, threatened by the
SEC; and any required filing of the Prospectus pursuant
to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b) under the 1933
Act.
(xi) At the time the Registration Statement
became effective, the Registration Statement (other
than financial statements, schedules and other
financial data included in the documents incorporated
by reference therein, as to which no opinion need be
rendered) complied as to form in all material respects
with the requirements of the 1933 Act, the 1939 Act and
the regulations under each of those Acts.
(xii) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending
or threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein.
(xiii) The execution and delivery of this
Agreement or of the Indenture, or the consummation by
the Company of the transactions contemplated by this
Agreement and the Notes and the incurrence of the
obligations therein contemplated, will not conflict
with or constitute a breach of, or default under, or
result in the creation or
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<PAGE>
imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Significant Subsidiary pursuant
to any contract, indenture, mortgage, loan agreement, note, lease
or other instrument known to such counsel and to which the
Company or any Significant Subsidiary is a party or to which any
of the property or assets of the Company or any Significant
Subsidiary is subject, or any law, administrative regulation or
administrative or court decree known to such counsel to be
applicable to the Company of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the
Company; nor will such action result in any violation of the
provisions of the charter or by-laws of the Company.
(xiv) To the best of such counsel's knowledge,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or
documents required to be described or referred to in
the Registration Statement or to be filed as exhibits
thereto other than those described or referred to
therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or
references thereto are correct.
(xv) No consent, approval, authorization, order
or decree of any court or governmental agency or body
including the SEC is required for the consummation by
the Company of the transactions contemplated by this
Agreement, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or
state securities laws.
(xvi) Each document filed pursuant to the 1934
Act and incorporated by reference in the Prospectus
complied when filed as to form in all material respects
with the 1934 Act and the 1934 Act Regulations
thereunder (other than financial statements, schedules
and other financial data included therein, as to which
no opinion need be rendered).
2. OPINION OF COUNSEL TO THE AGENT. The opinion of
Sullivan & Cromwell, counsel to the Agent, covering the matters
referred to in subparagraph (1) under the subheadings (i), (v), (vi),
(vii), (ix), (x) and (xi) above.
3. In giving their opinions required by subsection (a)(1)
and (a)(2) of this Section, Mr. Stroup and Sullivan & Cromwell shall
each additionally state that nothing has come to his or their
attention that would lead him or them to believe that the Registration
Statement (other than financial statements, schedules or other
financial data included or incorporated by reference therein, as to
which no statement need be made), at the time it became effective, and
if an amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the
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<PAGE>
Company with the SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or at the time
of the most recent such filing, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus, as amended or supplemented at the
date hereof, or (if such opinion is being delivered in connection with a
Terms Agreement pursuant to Section 7(c) hereof) at the date of any Terms
Agreement and at the Settlement Date with respect thereto, as the case may
be, contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(b) OFFICER'S CERTIFICATES. At the date hereof the Agent shall
have received a certificate of the Chairman of the Board, the President or any
Executive Vice President and the principal financial or accounting officer of
the Company, PROVIDED, HOWEVER, that no person shall sign such certificate in
more than one official capacity, dated as of the date hereof, to the effect that
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any applicable
Terms Agreement, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, general business affairs
or business prospects of the Company and its subsidiaries, taken as a whole,
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 initiated or threatened by the SEC.
(c) COMFORT LETTER. On the date hereof, the Agent shall have
received a letter from KPMG Peat Marwick LLP, dated as of the date hereof and in
form and substance satisfactory to the Agent, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, 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 (or, at the
option of the Agent, any applicable Terms
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<PAGE>
Agreement) may be terminated by the Agent insofar as this Agreement relates to
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(g) 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
delivery of Section 11 hereof and the provisions set forth under "Parties" of
Section 15 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
the 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 covenants and agrees with the Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance
by the Company of an offer for the purchase of Notes, and each delivery of Notes
to the Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in this
Agreement and in any certificate theretofore 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 purchaser or his agent, or to the
Agent, of the Note or 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 the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement, and other than by an amendment or supplement which
relates exclusively to an offering of debt securities other than the Notes) or
there is filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating exclusively to
the issuance of debt securities other than the Notes unless requested by the
Agent) or (if required pursuant to the terms of a Terms Agreement) the Company
sells Notes to the Agent pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished to the Agent forthwith a certificate dated the
date of filing with the SEC 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
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<PAGE>
satisfactory to the Agent to the effect that the statements contained in the
certificate referred to in Section 5(b) 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
said Section 5(b), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or solely for the inclusion of additional financial
information, and other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes) or there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating exclusively to the issuance
of debt securities other than the Notes unless requested by the Agent), or (if
required pursuant to the terms of a Terms Agreement) the Company sells Notes to
the Agent pursuant to a Terms Agreement, the Company shall furnish or cause to
be furnished forthwith to the Agent and to counsel to the Agent a written
opinion of the General Counsel of the Company, or other counsel satisfactory to
the Agent dated the date of filing with the SEC 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 opinion referred to in Section 5(a)(1) 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 opinion; or, in lieu of such
opinion, counsel last furnishing such opinion to the Agent shall furnish the
Agent with a letter 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). Each time that the
Company files with the SEC an Annual Report on Form 10-K that is incorporated by
reference into the Prospectus, counsel to the Agent shall furnish to the Agent a
written opinion dated the date of such filing of the same tenor as the opinion
referred to in Section 5(a)(3) 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 opinion; or in lieu of such opinion, counsel last
furnishing such opinion to the Agent shall furnish the Agent with a letter to
the effect that the Agent may rely on such last opinion to the same extent as
though it were 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 the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information, or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to the Agent pursuant to a Terms Agreement,
the Company shall cause KPMG Peat Marwick LLP forthwith to furnish the Agent a
letter, dated the
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<PAGE>
date of effectiveness of such amendment, supplement or document with the SEC, or
the date of such sale, as the case may be, in form satisfactory to the Agent, of
the same general tenor as the letter referred to in Section 5(c) 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; PROVIDED, HOWEVER, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, KPMG Peat
Marwick LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agent, such letter should cover
such other information.
SECTION 8. INDEMNIFICATION.
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 any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was 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 the Prospectus;
(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 investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if 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)
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
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<PAGE>
(b) INDEMNIFICATION OF COMPANY. The Agent agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) 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
the Prospectus (or any amendment or supplement thereto).
(c) GENERAL. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this
Section 8, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing, and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Agent that
are indemnified parties in the case of parties to be indemnified pursuant to
paragraph (a) of this Section 8 and by the Company in the case of parties to be
indemnified pursuant to paragraph (b) of this Section 8. An indemnifying party
shall not be liable for any settlement of any proceeding effected without its
prior written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
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<PAGE>
SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agent shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agent, as incurred, in such
proportions that the Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by the
Agent to the date of such liability bears to the total sales price from the sale
of Notes sold to or through the Agent to the date of such liability, and the
Company is responsible for the balance; PROVIDED, HOWEVER, that 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, each person,
if any, who controls the Agent within the meaning of Section 15 of the 1933 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,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 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 and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this Agreement;
(c) the preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) the fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent
or Exchange Rate Agent;
(e) the reasonable fees and disbursements of counsel to the Agent
incurred from time to time in connection with the transactions
contemplated hereby;
(f) the qualification of the Notes under Blue Sky laws in
accordance with the provisions of Section 4(i) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Agent in connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey;
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<PAGE>
(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 each Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) the preparation, printing, reproducing and delivery to the
Agent of copies of the Indenture and all supplements and amendments
thereto;
(i) any fees charged by rating agencies for the rating of the
Notes;
(j) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) any advertising and other out-of-pocket expenses of the Agent
incurred with the approval of the Company;
(l) the cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) the fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, 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
Terms Agreement) may be terminated for any reason, at any time, by either the
Company or the Agent (insofar as this Agreement relates to the Agent) upon the
giving of 30 days' written notice of such termination to the other party hereto.
(b) TERMINATION OF A TERMS AGREEMENT. The Agent may terminate any
Terms Agreement, immediately upon notice to the Company, at any time prior to
the Settlement Date relating thereto (i) if there shall have occurred any
material adverse change in the financial markets in the United States or any
outbreak or escalation of hostilities involving the United States 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 (ii) if
trading in any securities of the Company has been suspended by the SEC or a
national securities exchange, or if trading generally on either the
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American Stock Exchange 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 securities have been required, by either of said exchanges
or by order of the SEC or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York authorities or
if a banking moratorium shall have been declared by the relevant authorities in
the country or countries of origin of any foreign currency or currencies in
which the Notes are denominated or payable, or (iii) if the rating assigned by
any nationally recognized securities rating agency to any debt securities of the
Company as of the date of any applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company, or (iv) if there has occurred any
material adverse change in the condition, financial or otherwise, in the
business affairs or business prospects of the Company and its subsidiaries,
taken as a whole, whether or not in the ordinary course of business.
(c) GENERAL. In the event of any such termination, none of the
parties will have any liability to the other parties 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 (a) the
Agent shall own any Notes purchased pursuant to a Terms Agreement with the
intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the purchaser or his
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 (iii) the covenant set forth in
Section 4(g) 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 and 15 hereof shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, 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.
If to the Company:
Norwest Corporation
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479
Attention: Treasurer
If to the Agent:
Smith Barney Inc.
390 Greenwich Street, 4th Floor
New York, York 10013
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Attention: Ted Hamilton
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. 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 New
York applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against the Agent in connection with
or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of Manhattan, The City
of New York.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agent and the Company 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 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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<PAGE>
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,
NORWEST CORPORATION
By:
-------------------------------
Name:
Title:
Accepted:
Smith Barney Inc.
By:
-----------------------------------------
Name:
Title:
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SCHEDULE A
As compensation for the services of the Agent hereunder, the Company
shall pay it, 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:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
<S> <C>
From 9 months to less than 1 year. . . . . . . . . . . . . . . 0.20%
From 1 year to less than 2 years . . . . . . . . . . . . . . . 0.40
From 2 years to less than 3 years. . . . . . . . . . . . . . . 0.60
From 3 years to less than 4 years. . . . . . . . . . . . . . . 0.75
From 4 years to less than 5 years. . . . . . . . . . . . . . . 1.00
From 5 years to less than 6 years. . . . . . . . . . . . . . . 1.50
From 6 years to less than 7 years. . . . . . . . . . . . . . . 2.00
From 7 years to less than 10 years . . . . . . . . . . . . . . 2.25
From 10 years to less than 15 years. . . . . . . . . . . . . . 2.50
From 15 years to less than 20 years. . . . . . . . . . . . . . 2.75
From 20 years to 30 years. . . . . . . . . . . . . . . . . . . 3.00
More than 30 years . . . . . . . . . . . . . . . . . . . . . . As agreed at the
time of sale
</TABLE>
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agent
and the Company pursuant to each Terms Agreement:
Principal Amount: $
-----------------
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, interest rate:
If Floating Rate Notes:
Interest rate or interest rate basis applicable to each
interest period
Initial interest rate
Spread and/or spread multiplier, if any
Interest rate reset dates
Interest rate reset period
Interest payment dates
Interest payment period
Index maturity
Calculation agent
Maximum interest rate, if any
Minimum interest rate, if any
Calculation date
Interest determination dates
Regular record dates
If Original Issue Discount Zero Coupon Notes and Original Issue
Discount Fixed Rate Notes, any terms required to be established
by the Internal Revenue Code of 1986, as amended
If Redeemable:
Redemption Date
Redemption Prices
<PAGE>
If Repayable, repayment terms:
Date of Maturity
Purchase Price: ____%
Settlement Date and Time
Currency of Denomination
Currency of Payment
Additional Terms:
Also, in connection with the purchase of Notes by the Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the
Distribution Agreement
Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement
Stand-off Agreement pursuant to Section 4(j) of the Distribution
Agreement
A-2
<PAGE>
ANNEX A INTENTIONALLY OMITTED
<PAGE>
EXHIBIT 4(b)
CUSIP NO. PRINCIPAL AMOUNT:
REGISTERED NO.
NORWEST CORPORATION
RETAIL MEDIUM-TERM FIXED RATE NOTE SECURITY, SERIES I
Due Nine Months or More From Date of Issue
/ / Check this box if the Note is an Amortizing Note.
/ / Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
[Unless this Certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
[If applicable, this Note will contain information required by U.S.
Federal Income Tax "Original Issue Discount" rules, as that term is defined in
the Internal Revenue Code of 1986, as amended.]
ORIGINAL ISSUE DATE: ISSUE PRICE: % INTEREST RATE PER ANNUM:
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
MATURITY DATE: INTEREST PAYMENT DATES: REDEEMABLE ON OR AFTER
(AT OPTION OF THE COMPANY):
INITIAL REDEMPTION PERCENTAGE: ANNUAL REDEMPTION OPTIONAL REPAYMENT DATES:
PERCENTAGE REDUCTION:
SPECIFIED CURRENCY (if other EXCHANGE RATE AGENT (Only AUTHORIZED DENOMINATIONS
than U.S. dollars): applicable if Specified (Only applicable if
Currency is other than Specified Currency is
U.S. dollars): other than U.S. dollars):
DEPOSITARY (Only applicable OTHER TERMS:
if this Note is a Global Note):
</TABLE>
If this Note is an Amortizing Note, installments of principal will be
paid on the dates specified below in the amounts specified below with respect to
each $1,000 original principal amount of the Note:
Amortizing Payment Dates: Amortizing Payment Amounts:
NORWEST CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), for value
received, hereby promises to pay to ________________________________________, or
registered assigns, the principal sum of___________________________________at
the office or agency of the Company in the Borough of Manhattan, The City of New
York or the City of Minneapolis, Minnesota, on the maturity date shown above, or
if such date is not a Market Day (as defined below), the next succeeding Market
Day (the "Stated Maturity"), in such coin or currency specified above as at the
time of payment shall be legal tender for the payment of public and private
debts, PROVIDED, HOWEVER, that if this Note is specified above to be an
Amortizing Note, the installments of principal on this Note will be paid,
without presentation of this Note, on each Amortizing Payment Date specified
above, to the
-2-
<PAGE>
person in whose name this Note is registered at the close of business on the
fifteenth calendar day (whether or not a Market Day) next preceding such
Amortizing Payment Date (the "Amortizing Record Date"), in the respective amount
per $1,000 principal amount of this Note specified above (the "Amortizing
Payment Amount") in respect of such Amortizing Payment Date; and to pay interest
on the principal amount hereof at the rate per annum (computed on the basis of a
360-day year of twelve 30-day months) shown above, in like coin or currency,
monthly on each Interest Payment Date set forth above from and after the date of
this Note and at Maturity until payment of the principal amount hereof has been
made or duly provided for, PROVIDED, HOWEVER, that the Company will make such
payments in respect of non-U.S. dollar denominated Notes in U.S. dollars
determined as set forth hereinbelow; PROVIDED, HOWEVER, that payments of
principal of, premium, if any, and interest on Notes denominated in other than
U.S. dollars will nevertheless be made in the Specified Currency at the election
of the holder as provided herein (unless the Company is unable to make such
payments in the Specified Currency due to the imposition of exchange controls or
other circumstances beyond the control of the Company as provided herein).
Unless this Note is a Note which has been issued upon transfer of, in exchange
for, or in replacement of, a predecessor Note, interest on this Note shall
accrue from the Original Issue Date indicated above. If this Note has been
issued upon transfer of, in exchange for, or in replacement of, a predecessor
Note, interest on this Note shall accrue from the last Interest Payment Date to
which interest was paid on such predecessor Note or, if no interest was paid on
such predecessor Note, from the Original Issue Date indicated above. The first
payment of interest on a Note originally issued and dated between a Record Date
(as defined below) and an Interest Payment Date will be due and payable on the
Interest Payment Date following the next succeeding Record Date to
-3-
<PAGE>
the registered owner on such next succeeding Record Date. Subject to certain
exceptions provided in the Indenture referred to hereinbelow, the interest so
payable on any Interest Payment Date will be paid to the person in whose name
this Note is registered at the close of business on the day (whether or not a
Market Day) fifteen calendar days next preceding such Interest Payment Date
(each such date a "Record Date"), and interest payable at Maturity will be paid
to the person to whom said principal sum is payable.
Except as set forth below, payment of interest on this Note due on
any Interest Payment Date and payment of principal on this Note due on any
Amortizing Payment Date to be made in U.S. dollars will be payable at the
corporate trust office of the Trustee (as hereinafter defined) or at the
corporate trust office of Norwest Bank Minnesota, N.A., as paying agent (the
"Paying Agent"), PROVIDED that, at the option of the Company, payment may be
made by check mailed to the person entitled thereto at his or her last address
as it appears in the Security Register or, in the case of a holder of
$10,000,000 or more in aggregate principal amount of Notes, by wire transfer to
such account as may have been designated by such holder as set forth herein.
Payment of the principal of, premium, if any, and interest, if any, on this Note
due to the holder hereof at Maturity to be made in U.S. dollars will be paid, in
immediately available funds, upon presentation of this Note at the corporate
trust office of the Trustee in The City of New York or the corporate trust
office of the Paying Agent in the City of Minneapolis, Minnesota, provided that
this Note is presented for surrender to the Paying Agent in time for the Paying
Agent to make such payment in such funds in accordance with its normal
procedures.
If this Note is a Global Note, the total amount of any principal,
premium, if any, and interest due on this Note representing one or more
Book-Entry Notes on any Interest Payment Date or Amortizing Payment Date or at
Maturity will be made available to the Trustee on such
-4-
<PAGE>
date. As soon as possible thereafter, the Trustee will make such payments to
the Depositary. The Depositary will allocate such payments to each Book-Entry
Note represented by the Global Note and make payments to the owners or holders
thereof in accordance with its existing operating procedures.
Payments of interest to be made in a Specified Currency other than
U.S. dollars (other than interest on this Note due to the holder hereof at
Maturity) will be paid by check mailed to the address of the holder entitled
thereto as it appears in the Security Register, such check to be drawn on a bank
office located outside the United States. Payment in a Specified Currency other
than U.S. dollars of any Amortizing Payment Amount will be paid by check mailed
to the address of the holder entitled thereto as it appears in the Security
Register, such check to be drawn on a bank office located outside the United
States. Payment in a Specified Currency other than U.S. dollars of the
principal of and premium, if any, and interest on this Note due to the holder
hereof at Maturity will be made by wire transfer of immediately available funds
to a designated account maintained in the country issuing the Specified Currency
as shall have been designated at least sixteen days prior to Maturity by the
registered holder of this Note at Maturity, provided that this Note is presented
for surrender to the Paying Agent in time for the Paying Agent to make such
payment in such funds in accordance with its normal procedures.
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Paying Agent at its corporate trust
office and, unless revoked by written notice to the Paying Agent received by the
Paying Agent on or prior to the Record Date immediately preceding the applicable
Interest Payment Date, the Amortizing Record Date immediately preceding the
applicable Amortizing Payment Date or the sixteenth calendar day
-5-
<PAGE>
preceding Maturity shall remain in effect with respect to any further payments
with respect to this Note payable to such holder.
Unless otherwise specified above under "Other Terms", payments of
principal of and any premium and interest on any Note denominated in a Specified
Currency other than U.S. dollars will be converted by the Exchange Rate Agent to
U.S. dollars in the manner set forth below, PROVIDED, HOWEVER, that the holder
of any Note denominated in a Specified Currency other than U.S. dollars may
elect to receive the Specified Currency by transmitting a written request for
such payment to the corporate trust office of the Paying Agent on or prior to
the Record Date immediately preceding any Interest Payment Date, the Amortizing
Record Date immediately preceding the applicable Amortizing Payment Date or at
least sixteen calendar days prior to Maturity. Such request may be mailed or
hand delivered or sent by cable or telex or other form of facsimile
transmission. The holder of any such Note may elect to receive payment in the
Specified Currency for all principal, premium, if any, and interest payments and
need not file a separate election for each payment. Any such election will
remain in effect until revoked by written notice to the Paying Agent, but
written notice of any such revocation must be received by the Paying Agent on or
prior to the Record Date immediately preceding the applicable Interest Payment
Date, the Amortizing Record Date immediately preceding the applicable Amortizing
Payment Date or the sixteenth calendar day preceding Maturity.
If this Note is a Global Note as specified above, a beneficial owner
of this Note denominated in a Specified Currency electing to receive payments of
principal or any premium or interest in a Specified Currency other than U.S.
dollars must notify the participant through which its interest is held on or
prior to the applicable Regular Record Date, in the case of a payment of
interest, and on or prior to the sixteenth day prior to Maturity, in the case of
principal or premium,
-6-
<PAGE>
of such beneficial owner's election to receive all or a portion of such payment
in a Specified Currency. Such participant must notify the Depositary of such
election on or prior to the third Market Day after such Regular Record Date.
The Depositary will notify the Paying Agent of such election on or prior to the
fifth Market Day after such Regular Record Date. If complete instructions are
received by the participant and forwarded by the participant to the Depositary,
and by the Depositary to the Paying Agent, on or prior to such dates, the
beneficial owner will receive payments in the Specified Currency.
If a payment with respect to this Note cannot be made by wire
transfer because the required designation has not been received by the Paying
Agent on or before the requisite date or for any other reason, a notice will be
mailed to the holder at its registered address requesting a designation pursuant
to which such wire transfer can be made and, upon the Paying Agent's receipt of
such designation, such payment will be made within five Market Days of such
receipt. The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but any tax, assessment or
governmental charge imposed upon payments will be borne by the holder or holders
of this Note in respect of which payments are made.
All percentages resulting from any calculation referred to herein
will be rounded, if necessary, to the nearest one hundred-thousandth of one
percentage point, with five one-millionths of one percentage point rounded
upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)
and 9.876544% (or .09876544) being rounded to 9.87654% (or .0987654)); and all
currency or currency unit amounts used in or resulting from such calculations on
this Note will be rounded to the nearest one-hundredth of a unit (with .005 of a
unit being rounded upward).
-7-
<PAGE>
Any payment on this Note due on any day which is not a Market Day
need not be made on such day, but may be made on the next succeeding Market Day
with the same force and effect as if made on the due date and no interest shall
accrue for the period from and after such date.
IF THIS NOTE IS A GLOBAL NOTE AS SPECIFIED ABOVE, THE FOLLOWING
LEGEND IS APPLICABLE: "THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR NOMINEE OF
SUCH SUCCESSOR".
"Market Day" means (a) with respect to any Note, any day that is not
a Saturday or Sunday and that is not a day on which banking institutions
generally are authorized or obligated by law or executive order to close in the
City of Minneapolis, Minnesota or The City of New York, and (b) only if this
Note is denominated in a Specified Currency other than U.S. dollars, any day
that is also, in the principal financial center of the country of the currency
in which this Note is denominated, not a day on which banking institutions
generally are authorized or obligated by law or executive order to close and
(d) only if this Note is denominated in European Currency Units ("ECUs"), is
also an "ECU Settlement Day" ("ECU Settlement Day" means any day that (i) is not
either (A) a Saturday or a Sunday or (B) a day that is designated as an ECU
Non-Settlement Day by the ECU Banking Association in Paris or otherwise
generally regarded in the ECU interbank market as a day on which payments on
ECUs shall not be made, and (ii) is a day on which payments in the ECU can be
settled by commercial banks and in foreign exchange markets in the place in
which the relevant account for payment is located).
-8-
<PAGE>
Additional provisions of this Note are contained following the
signature lines and Certificate of Authentication hereof and such provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by an
authorized officer of the Trustee or its duly authorized agent under the
Indenture referred to hereinbelow.
-9-
<PAGE>
IN WITNESS WHEREOF, NORWEST CORPORATION has caused this instrument to
be signed by its duly authorized officer, and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF NORWEST CORPORATION
AUTHENTICATION
This Note is one of a
designated series of
Debt Securities described
in the Indenture referred By
to hereinbelow ----------------------------------------
----------------------, --------------
CITIBANK, N.A.,
as Trustee,
Attest:
By
--------------------------
Authorized Officer -------------------------------------------
--------------------------------, Secretary
OR
NORWEST BANK MINNESOTA, N.A., [SEAL]
as Authenticating Agent
for the Trustee
By
--------------------------
Authorized Officer
-10-
<PAGE>
NORWEST CORPORATION
RETAIL MEDIUM-TERM FIXED RATE NOTE SECURITY, SERIES I
Due Nine Months or More From Date of Issue
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness of the Company (the "Debt Securities"), all
issued or to be issued under and pursuant to an indenture dated as of
September 15, 1995 (the "Indenture"), with Citibank, N.A., as Trustee (the
"Trustee"), to which Indenture reference is hereby made for a description of the
rights, duties and immunities thereunder of the Trustee and the rights
thereunder of the holders of the Debt Securities. As provided in the Indenture,
the Debt Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to
different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, may be subject to different covenants and
events of default, and may otherwise vary as in the Indenture provided or
permitted. This Note is one of a series of the Debt Securities, which series is
limited to an aggregate initial offering price of $300,000,000, designated as
the Retail Medium-Term Note securities, Series I (the "Notes"), of the Company.
The Notes may mature at different times, bear interest, if any, at different
rates, be redeemable at different times or not at all, be repayable at the
option of the holder at different times or not at all, be issued at an original
issue discount, be extendable and be denominated in different currencies.
If this Note is denominated in a Specified Currency other than U.S.
dollars, any U.S. dollar amount to be received by a holder of this Note will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent specified above at
-11-
<PAGE>
approximately 11:00 A.M., New York City time, on the second Market Day preceding
the applicable payment date from three recognized foreign exchange dealers (one
of which may be the Exchange Rate Agent) selected by the Exchange Rate Agent and
approved by the Company for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date, in the aggregate
amount of the Specified Currency payable to all holders of Notes receiving U.S.
dollar payments on such payment date and at which the applicable dealer commits
to execute a contract. If three such bid quotations are not available, payments
will be made in the Specified Currency. All currency exchange costs associated
with any payments in U.S. dollars will be borne by the holder of the Note by
deductions from such payments.
If the principal of, premium, if any, or interest on this Note is
payable in a Specified Currency other than U.S. dollars and, due to the
imposition of exchange controls or other circumstances beyond the control of the
Company, the Specified Currency is not available at the time of any scheduled
payment of principal, premium or interest to be made in the Specified Currency,
then the Company shall be entitled to satisfy its obligations hereunder by
making such payment in U.S. dollars. Any such payment shall be made on the
basis of the Market Exchange Rate on the second Market Day prior to such
payment, or if such Market Exchange Rate is not then available, on the basis of
the most recently available Market Exchange Rate or as otherwise indicated above
under "Other Terms". The Market Exchange Rate for any Specified Currency means
the noon buying rate in The City of New York for cable transfer for such
Specified Currency as certified for customs purposes by (or if not so certified,
as otherwise determined by) the Federal Reserve Bank of New York. Any payment
under such circumstances in U.S. dollars where required payment is in a
Specified Currency will not constitute an Event of Default under the Indenture.
-12-
<PAGE>
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal hereof
may be declared, and upon such declaration shall become, due and payable in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Note.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Debt Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee with
the consent of the holders of two-thirds in principal amount of the Debt
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting (i) the holders of two-thirds in principal
amount of the Debt Securities of each series at the time Outstanding, on behalf
of the holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and (ii) the holders of a
majority in principal amount of the Debt Securities of each Series at the time
Outstanding, on behalf of the holders of all Debt Securities of such series, to
waive certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the holder of this Note shall be conclusive and
binding upon such holder and upon all future holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
-13-
<PAGE>
If so provided above under the heading "Redeemable on or after (at
Option of the Company)", this Note may be redeemed by the Company on and after
the date so indicated. On and after the date, if any, from which this Note may
be redeemed, this Note may be redeemed in whole or in part, at the option of the
Company, at a redemption price equal to the product of the principal amount of
this Note to be redeemed multiplied by the Redemption Percentage. The
Redemption Percentage shall initially equal the Initial Redemption Percentage
specified above, and shall decline at each anniversary of the initial date that
this Note is redeemable by the amount of the Annual Redemption Percentage
Reduction specified above, until the Redemption Percentage is equal to 100%.
If so provided above, this Note will be repayable in whole or in part
in increments of $1,000 or, in the case of non-U.S. dollar denominated Notes, of
an amount equal to the integral multiples referred to under the heading
"Authorized Denominations" (or, if no such reference is made, an amount equal to
the minimum Authorized Denomination) provided that the remaining principal
amount of any Note surrendered for partial repayment shall be at least $1,000
or, in the case of non-U.S. dollar denominated Notes, the minimum Authorized
Denomination referred to above, on any "Optional Repayment Date" specified
above, at the option of the holder, at 100% of the principal amount to be
repaid, plus accrued interest, if any, to the repayment date. In order for the
exercise of the option to be effective and the Notes to be repaid, the Company
must receive at the applicable address of the Paying Agent set forth below or at
such other place or places of which the Company shall from time to time notify
the holder of the within Note, on or before the thirtieth, but not earlier than
the forty-fifth calendar day, or, if such day is not a Market Day, the next
succeeding Market Day, prior to the repayment date, either (i) this Note, with
the form below entitled "Option to Elect Repayment" duly completed, or (ii) a
telegram, telex, facsimile
-14-
<PAGE>
transmission, or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States of America setting forth (a) the name, address and
telephone number of the holder of this Note, (b) the principal amount of this
Note and the amount of this Note to be repaid, (c) a statement that the option
to elect repayment is being exercised thereby, and (d) a guarantee stating that
the Company will receive this Note, with the form below entitled "Option to
Elect Repayment" duly completed, not later than five Market Days after the date
of such telegram, telex, facsimile transmission or letter (and this Note and
form duly completed are received by the Company by such fifth Market Day). Any
such election shall be irrevocable. The address to which such deliveries are to
be made is Sixth and Marquette, Minneapolis, Minnesota 55479 (or, at such other
place as the Company shall notify the holders of the Notes). All questions as
to the validity, eligibility (including time of receipt) and acceptance of any
Note for repayment will be determined by the Company, whose determination will
be final and binding.
The Notes are issuable in global or definitive form without coupons
in denominations of $1,000 and integral multiples thereof or, if the Specified
Currency is other than U.S. dollars, in the denominations indicated above. Upon
due presentment for registration of transfer of this Note at the corporate trust
office of the Trustee in the Borough of Manhattan, The City of New York or at
the corporate trust office of the Paying Agent in the City of Minneapolis,
Minnesota, a new Note or Notes in authorized denominations in the Specified
Currency for an equal aggregate principal amount and like interest rate and
Stated Maturity will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture and to the limitations described
below with respect to Global Notes, if applicable, without charge except for any
tax or other governmental charge imposed in connection therewith.
-15-
<PAGE>
If this Note is a Global Note (as specified above), this Note is
exchangeable only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive Notes
in registered form and so notifies the Trustee or (z) an Event of Default with
respect to the Notes represented hereby has occurred and is continuing. If this
Note is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for definitive Notes in registered form, bearing interest (if any)
at the same rate or pursuant to the same formula, having the same date of
issuance, redemption provisions, if any, Specified Currency, Stated Maturity and
other terms and of differing denominations aggregating a like amount.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the places, at the respective times, at the rate and in the currency herein
prescribed.
The Company, the Trustee and the Paying Agent may deem and treat the
registered holder hereof as the absolute owner of this Note at such holder's
address as it appears on the Security Register of the Company as kept by the
Trustee or duly authorized agent of the Company (whether or not this Note shall
be overdue), for the purpose of receiving payment of or on account hereof and
for all other purposes, and none of the Company, the Trustee or Paying Agent
shall be affected by any notice to the contrary. All payments made to or upon
the order of such registered holder shall, to the extent of the sum or sums
paid, effectually satisfy and discharge liability for moneys payable on this
Note.
-16-
<PAGE>
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any Note, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, or against any past, present or
future stockholder, officer or director, as such, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such personal liability of every such incorporator, stockholder,
officer and director, as such, being expressly waived and released by the
acceptance hereof and as a condition of and as part of the consideration for the
issuance of this Note.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
-17-
<PAGE>
--------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at _______________________________
(please print or typewrite name and address of the undersigned).
For this Note to be repaid the Company must receive at the applicable
address of the Paying Agent set forth above or at such other place or places of
which the Company shall from time to time notify the holder of the within Note,
on or before the thirtieth, but not earlier than the forty-fifth, calendar day,
or, if such day is not a Market Day, the next succeeding Market Day, prior to
the repayment date, (i) this Note, with this "Option to Elect Repayment" form
duly completed, or (ii) a telegram, telex, facsimile transmission, or letter
from a member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the holder of the Note, (b) the principal amount of the Note and the amount of
the Note to be repaid, (c) a statement that the option to elect repayment is
being irrevocably exercised thereby, and (d) a guarantee stating that the Note
to be repaid with the form entitled "Option to Elect Repayment" on the addendum
to the Note duly completed will be received by the Company
-18-
<PAGE>
not later than five Market Days after the date of such telegram, telex,
facsimile transmission or letter (and such Note and form duly completed are
received by the Company by such fifth Market Day).
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000 or, if the Note is denominated in a currency other than U.S. dollars, of
an amount equal to the integral multiples referred to above under the heading
"Authorized Denominations" (or, if no such reference is made, an amount equal to
the minimum Authorized Denomination)) which the holder elects to have repaid:
; and specify the denomination or denominations (which shall
be $1,000 or an integral multiple thereof) of the Note or Notes to be issued to
the holder for the portion of the within Note not being repaid (in the absence
of any specification, one such Note will be issued for the portion not being
repaid): _______________________.
Date:
----------------- ----------------------------------------------
Notice: The signature to this Option to Elect
Repayment must correspond with the name as
written upon page 2 of the Note in every
particular without alteration or enlargement or
any other change whatsoever.
-19-
<PAGE>
---------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT-- _______ CUSTODIAN _____
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
</TABLE>
Please Insert Social Security or
Other Identifying Number of Assignee
- --------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of NORWEST CORPORATION and does hereby irrevocably constitute
and appoint _________________________________________ attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:
-------------------------- ----------------------------------------
----------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
-20-
<PAGE>
EXHIBIT 4(c)
NORWEST CORPORATION
TO
CITIBANK, N.A.
TRUSTEE
________________
INDENTURE
DATED AS OF SEPTEMBER 15, 1995
________________
SUBORDINATED DEBT SECURITIES
<PAGE>
NORWEST CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF SEPTEMBER 15, 1995
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . 609
(a)(2). . . . . . . . . . . . . . . . . . . . . . 609
(a)(3). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . 704, 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . . . 102
(c)(3). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 104(h), 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 104(h), 513
(a)(2). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . 104(h)
Section 317(a)(1). . . . . . . . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . 107
(c) . . . . . . . . . . . . . . . . . . . . . . . 107
_____________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
----
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
AFFILIATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
AUTHORIZED NEWSPAPER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BEARER SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BOARD RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BUSINESS DAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"CAPITAL EXCHANGE AGENT" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"CAPITAL EXCHANGE DATE", . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"CAPITAL EXCHANGE PRICE",. . . . . . . . . . . . . . . . . . . . . . . . . . 3
CAPITAL SECURITY ELECTION FORM . . . . . . . . . . . . . . . . . . . . . . . 3
CEDEL" OR "CEDEL S.A." . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CLOSING PRICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
COMMON STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
COMPANY REQUEST" AND "COMPANY ORDER. . . . . . . . . . . . . . . . . . . . . 4
CONVERSION PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CONVERTIBLE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CORPORATE TRUST OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CORPORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
COUPON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DEBT SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DEFAULTED INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DEPOSITARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DESIGNATED CURRENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
DOLLAR" OR "$. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ECU. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ELIGIBLE INSTRUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EUROCLEAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EUROPEAN COMMUNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EXCHANGE RATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EXCHANGE RATE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EXCHANGE RATE OFFICER'S CERTIFICATE. . . . . . . . . . . . . . . . . . . . . 5
FOREIGN CURRENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
GLOBAL EXCHANGE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
GLOBAL EXCHANGE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
GLOBAL SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
i
<PAGE>
HOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
INDENTURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
INTEREST PAYMENT DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
MARKET VALUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
MATURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
OFFICERS' CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
OPINION OF COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
OPTIONAL SECURITIES FUND . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ORIGINAL ISSUE DISCOUNT SECURITY . . . . . . . . . . . . . . . . . . . . . . 6
OUTSTANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PAYING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PERPETUAL PREFERRED STOCK. . . . . . . . . . . . . . . . . . . . . . . . . . 7
PERSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PLACE OF CAPITAL EXCHANGE. . . . . . . . . . . . . . . . . . . . . . . . . . 8
PLACE OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PREDECESSOR SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PRIMARY FEDERAL REGULATOR. . . . . . . . . . . . . . . . . . . . . . . . . . 8
REDEMPTION DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
REDEMPTION PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
REGISTERED SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
REGULAR RECORD DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
REMARKETING ENTITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
REPAYMENT DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
REPAYMENT PRICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
RESPONSIBLE OFFICER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECONDARY OFFERING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECURITIES FUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECURITY REGISTER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SENIOR DEBT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SPECIAL RECORD DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
STATED MATURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TRUST INDENTURE ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
UNITED STATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
UNITED STATES ALIEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
U.S. GOVERNMENT OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . . . .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 . . . . . . . . . . . . . .13
SECTION 106. NOTICE TO HOLDERS; WAIVER . . . . . . . . . . . . . . . . . . . .13
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT . . . . . . . . . . . . . . . .14
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . . . . . .14
SECTION 109. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . .15
SECTION 110. SEPARABILITY CLAUSE . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 111. BENEFITS OF INDENTURE . . . . . . . . . . . . . . . . . . . . . .15
SECTION 112. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 113. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 114. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . .15
ii
<PAGE>
ARTICLE TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 201. FORMS GENERALLY . . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION . . . . . . . . .16
SECTION 203. DEBT SECURITIES IN GLOBAL FORM. . . . . . . . . . . . . . . . . .17
ARTICLE THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 301. AMOUNT UNLIMITED; ISSUANCE IN SERIES. . . . . . . . . . . . . . .17
SECTION 302. DENOMINATIONS . . . . . . . . . . . . . . . . . . . . . . . . . .21
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. . . . . . . . . .21
SECTION 304. TEMPORARY DEBT SECURITIES . . . . . . . . . . . . . . . . . . . .24
SECTION 305. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE . . . . . . .27
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES . . . . . .30
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . . . . . . .31
SECTION 308. PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . . . . . .34
SECTION 309. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . . . .34
SECTION 310. COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . . . . . .34
SECTION 311. CERTIFICATION BY A PERSON ENTITLED TO DELIVERY OF A BEARER
SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 312. JUDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . .35
SECTION 402. APPLICATION OF TRUST MONEY AND ELIGIBLE INSTRUMENTS . . . . . . .37
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF DEBT SECURITIES OF
ANY SERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 501. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . . . . . . .40
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . . . . . .43
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES OR COUPONS. . . . . . . . . . . . . . . . . . . . . . . . . . . .43
SECTION 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . . . . . . .43
SECTION 507. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . . . .44
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST AND TO EXCHANGE DEBT SECURITIES FOR CAPITAL SECURITIES. . . . .45
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . . . . . .45
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . . .45
SECTION 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . . . . . . .45
SECTION 512. CONTROL BY HOLDERS OF DEBT SECURITIES . . . . . . . . . . . . . .46
SECTION 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . . . . . .46
SECTION 514. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . . . . . .47
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS. . . . . . . . . . . . . . . . .47
ARTICLE SIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES . . . . . . . . . . . . . . .47
SECTION 602. NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 603. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . .48
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT SECURITIES . . .49
SECTION 605. MAY HOLD DEBT SECURITIES OR COUPONS . . . . . . . . . . . . . . .49
SECTION 606. MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . . . . . . .49
SECTION 607. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . . . . . .50
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS . . . . . . . . . . . . .50
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY . . . . . . . . . . . . .51
iii
<PAGE>
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR . . . . . . . .51
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . . . . . .53
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS . . .54
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY . . . . . . . .54
SECTION 614. AUTHENTICATING AGENT. . . . . . . . . . . . . . . . . . . . . . .54
ARTICLE SEVEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS . . . .56
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. . . . . .56
SECTION 703. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . .57
SECTION 704. REPORTS BY COMPANY. . . . . . . . . . . . . . . . . . . . . . . .57
ARTICLE EIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS . . . . . . .57
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED . . . . . . . . . . . . . . . .58
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. . . . . . . .58
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS . . . . . . . . .60
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . .61
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . .62
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT . . . . . . . . . . . . . . .62
SECTION 906. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES . . . . .62
ARTICLE TEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST . . . . . . . . . . .62
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . . . .63
SECTION 1003. MONEY FOR DEBT SECURITIES PAYMENTS TO BE HELD IN TRUST . . . . .64
SECTION 1004. OFFICERS' CERTIFICATE AS TO DEFAULT. . . . . . . . . . . . . . .65
SECTION 1005. WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . . . . . . .66
SECTION 1006. PAYMENT OF ADDITIONAL AMOUNTS. . . . . . . . . . . . . . . . . .66
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
SECTION 1101. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . .67
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. . . . . . . . . . . . . .67
SECTION 1103. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED . . . . .67
SECTION 1104. NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . . . .68
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . . . .69
SECTION 1106. DEBT SECURITIES PAYABLE ON REDEMPTION DATE . . . . . . . . . . .69
SECTION 1107. DEBT SECURITIES REDEEMED IN PART . . . . . . . . . . . . . . . .70
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70
SECTION 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . .70
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT SECURITIES . . .70
SECTION 1203. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND . . . . . . . . .71
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71
SECTION 1301. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . .71
SECTION 1302. REPAYMENT OF DEBT SECURITIES . . . . . . . . . . . . . . . . . .72
SECTION 1303. EXERCISE OF OPTION; NOTICE . . . . . . . . . . . . . . . . . . .72
SECTION 1304. ELECTION OF REPAYMENT BY REMARKETING ENTITIES. . . . . . . . . .73
SECTION 1305. SECURITIES PAYABLE ON THE REPAYMENT DATE . . . . . . . . . . . .73
iv
<PAGE>
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
SECTION 1401. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . .74
SECTION 1402. EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES AT
STATED MATURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
SECTION 1403. RIGHT OF EARLY EXCHANGE OF CAPITAL SECURITIES FOR DEBT
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
SECTION 1404. NOTICES OF EXCHANGE. . . . . . . . . . . . . . . . . . . . . . .75
SECTION 1405. RIGHTS AND DUTIES OF HOLDERS OF DEBT SECURITIES TO BE
EXCHANGED FOR CAPITAL SECURITIES . . . . . . . . . . . . . . . . . . . . . .77
SECTION 1406. ELECTION TO EXCHANGE . . . . . . . . . . . . . . . . . . . . . .79
SECTION 1407. DEPOSIT OF CAPITAL EXCHANGE PRICE. . . . . . . . . . . . . . . .79
SECTION 1408. DEBT SECURITIES DUE ON CAPITAL EXCHANGE DATE; DEBT
SECURITIES EXCHANGED IN PART . . . . . . . . . . . . . . . . . . . . . . . .79
SECTION 1409. FORM OF CAPITAL SECURITY ELECTION FORM . . . . . . . . . . . . .81
SECTION 1410. FRACTIONAL CAPITAL SECURITIES. . . . . . . . . . . . . . . . . .81
SECTION 1411. COMPANY TO OBTAIN GOVERNMENTAL AND REGULATORY APPROVALS. . . . .82
SECTION 1412. TAXES ON EXCHANGE. . . . . . . . . . . . . . . . . . . . . . . .82
SECTION 1413. COVENANTS AS TO CAPITAL SECURITIES AND SECONDARY OFFERING. . . .82
SECTION 1414. PROVISION IN CASE OF CONSOLIDATION, MERGER OR TRANSFER OF
ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83
SECTION 1415. RESPONSIBILITY OF TRUSTEE. . . . . . . . . . . . . . . . . . . .83
SECTION 1416. REVOCATION OF OBLIGATION TO EXCHANGE CAPITAL SECURITIES
FOR DEBT SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .84
SECTION 1417. OPTIONAL SECURITIES FUNDS. . . . . . . . . . . . . . . . . . . .84
ARTICLE FIFTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85
SECTION 1501. CREATION OF SECURITIES FUNDS . . . . . . . . . . . . . . . . . .85
SECTION 1502. DESIGNATIONS OF SECURITIES FUNDS . . . . . . . . . . . . . . . .86
SECTION 1503. COVENANT OF THE COMPANY TO OBTAIN SECURITIES FUNDS . . . . . . .86
ARTICLE SIXTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87
SECTION 1601. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. . . . . . . . . . . .87
SECTION 1602. CALL, NOTICE AND PLACE OF MEETINGS . . . . . . . . . . . . . . .87
SECTION 1603. PERSONS ENTITLED TO VOTE AT MEETINGS . . . . . . . . . . . . . .88
SECTION 1604. QUORUM; ACTION . . . . . . . . . . . . . . . . . . . . . . . . .88
SECTION 1605. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89
SECTION 1606. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. . . . . . . . .90
ARTICLE SEVENTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90
SECTION 1701. TERMINATION OF COMPANY'S OBLIGATIONS . . . . . . . . . . . . . .90
SECTION 1702. REPAYMENT TO COMPANY . . . . . . . . . . . . . . . . . . . . . .91
SECTION 1703. INDEMNITY FOR ELIGIBLE INSTRUMENTS . . . . . . . . . . . . . . .92
ARTICLE EIGHTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92
SECTION 1801. DEBT SECURITIES SUBORDINATE TO SENIOR DEBT . . . . . . . . . . .92
SECTION 1802. TRUSTEE AND HOLDERS OF DEBT SECURITIES MAY RELY ON CERTIFICATE
OF LIQUIDATING AGENT; TRUSTEE MAY REQUIRE FURTHER EVIDENCE AS TO OWNERSHIP
OF SENIOR DEBT; TRUSTEE NOT FIDUCIARY TO HOLDERS OF SENIOR DEBT. . . . . . .95
SECTION 1803. PAYMENT PERMITTED IF NO DEFAULT. . . . . . . . . . . . . . . . .95
SECTION 1804. TRUSTEE NOT CHARGED WITH KNOWLEDGE OF PROHIBITION. . . . . . . .96
SECTION 1805. TRUSTEE TO EFFECTUATE SUBORDINATION. . . . . . . . . . . . . . .96
SECTION 1806. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT . . . . . . . . . . .96
SECTION 1807. ARTICLE APPLICABLE TO PAYING AGENTS. . . . . . . . . . . . . . .96
SECTION 1808. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
COMPANY OR HOLDERS OF SENIOR DEBT. . . . . . . . . . . . . . . . . . . . . .97
v
<PAGE>
ARTICLE NINETEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 1901. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . 97
SECTION 1902. RIGHT TO CONVERT . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 1903. EXERCISE OF CONVERSION PRIVILEGE; DELIVERY OF COMMON STOCK ON
CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS. . . . . . . . . . . . 98
SECTION 1904. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES . . . . . . . . . . 99
SECTION 1905. CONVERSION PRICE . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 1906. ADJUSTMENT TO CONVERSION PRICE . . . . . . . . . . . . . . . . 99
SECTION 1907. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE. . . 103
SECTION 1908. TAXES ON SHARES ISSUED . . . . . . . . . . . . . . . . . . . . 104
SECTION 1909. SHARES TO BE FULLY PAID; COMPLIANCE WITH GOVERNMENTAL
REQUIREMENTS; LISTING OF COMMON STOCK. . . . . . . . . . . . . . . . . . . 104
SECTION 1910. RESPONSIBILITY OF TRUSTEE. . . . . . . . . . . . . . . . . . . 104
SECTION 1911. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS . . . . . . . . . . 105
SECTION 1912. COVENANT TO RESERVE SHARES . . . . . . . . . . . . . . . . . . 106
Testimonium. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Signature and Seals. . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Exhibit A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
vi
<PAGE>
INDENTURE (the "Indenture") dated as of September 15, 1995, between
NORWEST CORPORATION, a Delaware corporation (hereinafter called the "Company"),
having its principal place of business at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479 and CITIBANK, N.A., a national banking association
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes, bonds and other evidences of indebtedness (herein called the
"Debt Securities").
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders of such Debt Securities or of any such
series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust Indenture
Act, either directly or by reference therein, as in force at the date as of
which this instrument was executed, except as provided in Section 905, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States at the date of such
computation; and
<PAGE>
(4) 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.
Act" when used with respect to any Holder has the meaning specified in
Section 104.
"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.
"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 newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Debt Security established pursuant to
Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of the
Company, or the executive or any other committee of that board duly authorized
to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment or
Place of Capital Exchange, means any day which is not a Saturday or Sunday and
which is not a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or Place of Capital Exchange are authorized
or obligated by law or executive order to close.
2
<PAGE>
"Capital Exchange Agent" means the Person or Persons appointed by the
Company to give notices and to exchange Debt Securities of any series for
Capital Securities as specified in Article Fourteen.
"Capital Exchange Date", when used with respect to the Debt Securities
of any series, means any date on which such Debt Securities are to be exchanged
for Capital Securities pursuant to this Indenture.
"Capital Exchange Price", when used with respect to any Debt Security
of any series to be exchanged for Capital Securities, means the amount of
Capital Securities for which such Debt Security is to be exchanged pursuant to
this Indenture or the aggregate sale price of such Capital Securities in the
Secondary Offering for such Debt Security, as the case may be.
"Capital Securities" means any securities issued by the Company which
consist of any of the following: (i) Common Stock, (ii) Perpetual Preferred
Stock or (iii) securities which at the date of issuance may be issued in
exchange for, or the proceeds from the sale of which may be designated as
Securities Funds or Optional Securities Funds for the payment of the principal
of, "mandatory convertible securities" under applicable regulations of the
Primary Federal Regulator. Capital Securities may have such terms, rights and
preferences as may be determined by the Company.
"Capital Security Election Form" means a form substantially in the
form included in Section 1409.
"CEDEL" or "CEDEL S.A." means Cedel Bank S.A.
"Closing Price" has the meaning specified in Section 1906(d).
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this 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 on such date.
"Common Stock" means, when used with reference to the capital stock of
the Company, the class of stock which, at the date of execution of this
Indenture, is designated as common stock of the Company and stock of any class
or classes into which such common stock or any such other class may thereafter
be changed or reclassified. In case by reason of the operation of Article
Nineteen, the Convertible Securities shall be convertible into any other shares
or other securities or property of the Company or any other corporation, any
reference in this Indenture to the conversion of Convertible Securities pursuant
to Article Nineteen shall be deemed to refer to and include conversion of
Convertible Securities into such other shares or other securities or property.
3
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President (any references to a Vice President of the
Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or word or words added before or after the
title "Vice President"), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company, or
by another officer of the Company duly authorized to sign by a Board Resolution,
and delivered to the Trustee.
"Conversion Price" has the meaning specified in Section 1905.
"Convertible Securities" means any series of Debt Securities that are
designated as such pursuant to Section 301.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of original execution of this Indenture is located at
120 Wall Street, New York, New York 10043, except that, with respect to
presentation of the Debt Securities for payment or registration of transfers or
exchanges and the location of the Security Registrar, such term means the office
or agency of the Trustee at which at any particular time its corporate agency
business shall be conducted, which at the date of original execution of this
Indenture is located at 111 Wall Street, New York, New York 10043.
The term "corporation" includes corporations, associations, companies
and business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
4
<PAGE>
"Designated Currency" has the meaning specified in Section 312.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Eligible Instruments" means U.S. Government Obligations.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 301.
"Exchange Rate Officer's Certificate", with respect to any date for
the payment of principal of (and premium, if any) and interest on any series of
Debt Securities, means a certificate setting forth the applicable Exchange Rate
and the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Debt Securities denominated
in ECU, and other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301, and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or part
of a series of Debt Securities in accordance with Section 303.
5
<PAGE>
"Holder", with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security or a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented, amended or restated by or pursuant to one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
The term "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.
"Interest Payment Date", with respect to any Debt Security, means the
Stated Maturity of an installment of interest on such Debt Security.
"Market Value" of any Capital Securities issued on any Capital
Exchange Date for Debt Securities of any series shall be the sale price of such
Capital Securities which are sold in the Secondary Offering for the Debt
Securities of such series. In the event no such Secondary Offering takes place,
the Market Value of such Capital Securities shall be the fair value of such
Capital Securities on such Capital Exchange Date for Debt Securities of such
series as determined by three independent nationally recognized investment
banking firms selected by the Company.
"Maturity", when used with respect to any Debt Security, means the
date on which the principal of such Debt Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be counsel for the
Company, or who may be other counsel acceptable to the Trustee, which is
delivered to the Trustee.
"Optional Securities Fund" means a fund pursuant to which the proceeds
of sales of Capital Securities may be designated on the books of the Company for
the payment of any of the principal of any Debt Security pursuant to
Section 1417 of this Indenture.
"Original Issue Discount Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
6
<PAGE>
"Outstanding", when used with respect to Debt Securities means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Debt Securities and any
coupons appertaining thereto; provided, however, that if such Debt
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Debt Securities in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of 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 such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Perpetual Preferred Stock" means any stock of any class of the
Company which has a preference over Common Stock in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not mandatorily redeemable
or repayable, or redeemable or repayable at the option of the Holder, otherwise
than in shares of Common Stock or Perpetual Preferred Stock of another class or
series or with the proceeds of the sale of Common Stock or Perpetual Preferred
Stock.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
7
<PAGE>
"Place of Capital Exchange", when used with respect to Debt Securities
of any series, means any place where the Debt Securities of such series are
exchangeable for Capital Securities as specified pursuant to Section 301.
"Place of Payment", when used with respect to the Debt Securities of
any series means any place where the principal of (and premium, if any) and
interest on the Debt Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Primary Federal Regulator" means the primary United States federal
regulator of the Company (which at the date of this Indenture is the Board of
Governors of the Federal Reserve System), or any successor body or institution.
"Redemption Date", when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of
Registered Securities 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 specified for
that purpose as contemplated by Section 301.
"Remarketing Entity", when used with respect to Debt Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date", when used with respect to any Debt Security to be
repaid upon exercise of option for repayment by the Holder, means the date fixed
for such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Debt Security to be
repaid upon exercise of option for repayment by the Holder, means the price at
which it is to be repaid pursuant to this Indenture.
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"Responsible Officer" when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters.
"Rights" has the meaning specified in Section 1906(c).
"Secondary Offering", when used with respect to the Debt Securities of
any series, means the offering and sale by the Company of Capital Securities for
the account of Holders of Debt Securities of such series who elect to receive
cash and not Capital Securities on the Capital Exchange Date for such series.
"Securities Fund" means a fund pursuant to which the proceeds of sales
of Capital Securities are designated on the books of the Company for the payment
of any principal of any Debt Security pursuant to the provisions of
Section 1501.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means any obligation of the Company to its creditors
whether now outstanding or subsequently incurred other than (i) any obligation
as to which, in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such obligation is not Senior
Debt and (ii) obligations evidenced by the Debt Securities.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
or a coupon representing such installment of interest as the fixed date on which
the principal of such Debt Security or such installment is due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
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 Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of that series.
"United States" means the United States of America (including the
District of Columbia) and its possessions.
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"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture (other than the delivery of any
Debt Security to the Trustee for authentication pursuant to Section 303), the
Company shall furnish to the Trustee, if so requested by the Trustee, an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
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
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definition herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinions or representations with respect to such
matters is 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, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Debt Securities of a series are issuable in whole or
in part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt
Securities duly called and held in accordance with the provisions of Article
Sixteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee,
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Debt Securities shall be proved in the
manner provided in Section 1606.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debt Security shall bind every future
holder of the same Debt Security and the Holder of every Debt Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, suffered or omitted by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debt Security.
(g) For purposes of determining the principal amount of Outstanding
Debt Securities of any series of Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a
Foreign Currency or composite currency shall be deemed to have the principal
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amount determined by the Exchange Rate Agent by converting the principal amount
of such Debt Security in the currency in which such Debt Security is denominated
into Dollars at the Exchange Rate as of the date such Act is delivered to the
Trustee and, where it is hereby expressly required, to the Company, by Holders
of the required aggregate principal amount of the Outstanding Debt Securities of
such series (or, if there is no such rate on such date, such rate on the date
determined as specified as contemplated in Section 301).
(h) The Company may set a record date for purposes of determining
the identity of Holders of Debt Securities of any series entitled to vote or
consent to any action by vote or consent authorized or permitted by Section 512
or Section 513. Such record date shall be the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders of such Debt Securities furnished to the Trustee pursuant to Section 701
prior to such solicitation.
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,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided),
if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its 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; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required
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city outside the United States or, if not practicable, in Europe on a Business
Day at least twice, the first such publication to be not later than the latest
date and not earlier than the earliest date prescribed for the giving of such
notice.
In case, by reason of the suspension of or irregularities in regular
mail service or for any other reason, it shall be impossible or impracticable to
mail notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture or of the Debt Securities, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where notice to
Holders of Registered Securities is to be 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 by publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act required or permitted under this Indenture shall
be in the English language, except that any published notice may be in an
official language of the country of publication.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt Securities or
coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Debt Securities and coupons shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Capital
Exchange Date, Repayment Date or Stated Maturity of any Debt Security shall not
be a Business Day at any Place of Payment or Place of Capital Exchange, then
(notwithstanding any other provision of this Indenture or of the Debt Securities
or coupons) payment of interest or principal (and premium, if any) or exchange
of Debt Securities for Capital Securities or cash need not be made at such Place
of Payment or Place of Capital Exchange on such date, but may be made on the
next succeeding Business Day at such Place of Payment or Place of Capital
Exchange with the same force and effect as if made on the Interest Payment Date,
Capital Exchange Date, Redemption Date, Repayment Date or Stated Maturity, and
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, Repayment Date, Capital Exchange Date or Stated Maturity,
as the case may be.
SECTION 114. COUNTERPARTS.
This Indenture 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 Indenture.
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ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Debt Securities or coupons, as evidenced by their
signatures on the Debt Securities or coupons. If the form of Debt Securities of
any series or coupons (including any such Global Security) is 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 or the authentication and delivery of such
Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt
Securities in bearer form other than Debt Securities in temporary or permanent
global form shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
CITIBANK, N.A.
as Trustee
By_____________________________________
AUTHORIZED OFFICER
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SECTION 203. DEBT SECURITIES IN GLOBAL FORM.
If Debt Securities of a series are issuable in whole or in part in
global form, as specified as contemplated by Section 301, then, notwithstanding
clause (12) of Section 301 and the provisions of Section 302, such Global
Security shall represent such of the outstanding Debt Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amounts, of Outstanding Debt Securities represented thereby shall be made in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to
any Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUANCE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
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(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to Section 304, 305, 306,
906, 1107, 1303, 1408 or 1903 and except for any Debt Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the date or dates on which the principal and premium, if any,
of the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of the
series shall bear interest, or the method or methods by which such rate or
rates may be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on any Registered Security
on any Interest Payment Date and the circumstances, if any, in which the
Company may defer interest payments;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Debt Securities of
the series may be surrendered for exchange and notices and demands to or
upon the Company in respect of the Debt Securities of the series and this
Indenture may be served and where notices to Holders pursuant to
Section 106 will be published;
(6) if applicable, the period or periods within which or the date
or dates on which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(7) if applicable, the place or places at which, the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities shall be exchangeable for Capital
Securities of the Company, which terms and conditions shall not be
inconsistent with Article Fourteen;
(8) any covenant or option of the Company to create a Securities
Fund for the repayment of the Debt Securities and the terms and conditions
of such Securities Fund, which terms and conditions shall not be
inconsistent with Article Fifteen;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
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(10) whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Debt Securities
of the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Debt Security of such series of like tenor and term to be issued;
(11) whether the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities and, in
such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(12) if Debt Securities of the series are to be issuable initially
in the form of a temporary Global Security, the circumstances under which
the temporary Global Security can be exchanged for definitive Debt
Securities and whether the definitive Debt Securities will be Registered
and/or Bearer Securities and will be in global form and whether interest in
respect of any portion of such Global Security payable in respect of an
Interest Payment Date prior to the Global Exchange Date shall be paid to
any clearing organization with respect to a portion of such Global Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(13) whether, and under what conditions, additional amounts will be
payable to Holders of Debt Securities of the series pursuant to
Section 1006;
(14) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the denomination
of $5,000;
(15) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(16) the currency or currencies of denomination of the Debt
Securities of any series, which may be in Dollars, any Foreign Currency or
any composite currency, including but not limited to the ECU, and, if any
such currency of denomination is a composite currency other than the ECU,
the agency or organization, if any, responsible for overseeing such
composite currency;
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(17) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Debt Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and Exchange Rate Agent;
(18) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index based on a currency or currencies other than that in
which the Debt Securities are denominated or designated to be payable, the
manner in which such amounts shall be determined;
(19) if payments of principal of (and premium, if any) or interest
on the Debt Securities of the series are to be made in a Foreign Currency
other than the currency in which such Debt Securities are denominated, the
manner in which the Exchange Rate with respect to such payments shall be
determined or if the Exchange Rate is to be determined otherwise than as
provided in Section 101;
(20) any Events of Default with respect to Debt Securities of such
series, if not set forth herein;
(21) any other covenant or warranty included for the benefit of the
Debt Securities of the series in addition to (and not inconsistent with)
those set forth herein for the benefit of Debt Securities of all series, or
any other covenant or warranty included for the benefit of Debt Securities
of the series in lieu of any covenant or warranty set forth herein for the
benefit of Debt Securities of all series, or any provision that any
covenant or warranty set forth herein for the benefit of Debt Securities of
all series shall not be for the benefit of Debt Securities of such series,
or any combination of such covenants, warranties or provisions and the
applicability, if any, of the provisions of Section 1005 to such covenants
and warranties;
(22) the terms and conditions, if any, pursuant to which the
Company's obligations under this Indenture may be terminated through the
deposit of money or Eligible Instruments as provided in Articles Four and
Seventeen;
(23) the Person or Persons who shall be Security Registrar for the
Debt Securities of such series if other than the Trustee, and the place or
places where the Security Register for such series shall be maintained and
the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee;
(24) whether the Debt Securities of the series are Convertible
Securities and the terms related thereto including the Conversion Price and
the date on which the right to convert expires; and
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(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities 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
Officers' Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denominations of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Debt Securities shall be executed on behalf of the Company
by its Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President, and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt 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
Debt Securities or coupons of any series or did not hold such offices at the
date of such Debt Securities or coupons.
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(b) At any time and from time to time after the execution and
delivery of this Indenture, Debt Securities of any series may be executed by the
Company and delivered to the Trustee for authentication, and, except as
otherwise provided in this Article Three, shall thereupon be authenticated and
delivered by the Trustee upon Company Order, without any further action by the
Company; PROVIDED, HOWEVER, that, in connection with its original issuance, a
Bearer Security may be delivered only outside the United States and, except in
the case of a temporary Global Security, only if the Company or its agent shall
have received the certification required pursuant to Sections 304(b)(iii) and
(iv), unless such certification shall have been provided earlier pursuant to
section 304(b)(v) hereof, and only if the Company has no reason to know that
such certification is false.
To the extent authorized in or pursuant to a Board Resolution and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the Company shall
deliver to the Trustee (i) the certificates called for under Sections 201 and
301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating thereto;
(iii) an Officers' Certificate setting forth the form and terms of
the Debt Securities of such series and coupons, if any, pursuant to
Sections 201 and 301 and stating that all conditions precedent provided for
in this Indenture relating to the issuance of such Debt Securities have
been complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and coupons, if
any, has been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 201 in conformity with
the provisions of this Indenture;
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(B) that the terms of such Debt Securities and coupons, if
any, have been established in or pursuant to a Board Resolution or by
a supplemental indenture as permitted by Section 301 in conformity
with the provisions of this Indenture; and
(C) that such Debt Securities and coupons, if any, 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 binding obligations of the
Company, enforceable in accordance with their terms, except that where
Debt Securities of any series are to be exchanged for Capital
Securities or paid from the Securities Fund, the issuance of Capital
Securities will require further action by the Board of Directors, and
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally and the application of general principles
of equity and except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Debt Securities
denominated other than in Dollars (or a Foreign Currency or currency
unit judgment in respect of such claim) be converted into Dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (ii) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or currency
units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the
Debt Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver one or more Global Securities in permanent
or temporary form that (i) shall represent and shall be denominated in an
aggregate amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 303 if the issuance of such Debt
Securities will adversely affect the Trustee's own rights, duties or immunities
under the Debt Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Opinion of Counsel and the
items specified in subsection (b)(i)-(iii) above at the time of issuance of each
Debt Security, but such Opinion of Counsel, with appropriate modifications, and
the items specified in subsection (b)(i)-(iii) above may instead be delivered at
or prior to the time of the first issuance of Debt Securities of such series.
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(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 304. TEMPORARY DEBT SECURITIES.
(a) Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and upon receipt of documents required by
Sections 301 and 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
signatures on such Debt Securities. In the case of Debt Securities of any
series issuable as Bearer Securities, such temporary Debt Securities may be in
global form, representing all or any part of the Outstanding Debt Securities of
such series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global form,
if temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
such series, the related temporary Debt Securities shall be exchangeable
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for such definitive Debt Securities upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in the
Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of
any series (accompanied, if applicable, by all unmatured coupons and all
matured coupons in default appertaining thereto), the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debt Securities of the same series of like
tenor and terms and of authorized denominations; PROVIDED, HOWEVER, that no
Bearer Security shall be delivered in exchange for a Registered Security;
and PROVIDED, FURTHER, that a Bearer Security shall be delivered in
exchange for a Bearer Security only in compliance with the conditions set
forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary global
form, any such temporary Global Security shall, unless otherwise provided
pursuant to section 301, be delivered to the Depositary for the benefit of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other accounts as
they may direct).
(iii) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the "Global Exchange Date"), the Company shall
deliver definitive Debt Securities to the Trustee or the agent appointed by
the Company pursuant to Section 301 to effect the exchange of the temporary
Global Security for definitive Debt Securities (the "Global Exchange
Agent"), in an aggregate principal amount equal to the principal amount of
such temporary Global Security, executed by the Company. On or after the
Global Exchange Date, such temporary Global Security shall be surrendered
by the Depositary to the Global Exchange Agent, to be exchanged, in whole
or from time to time in part, for definitive Debt Securities without charge
and the Trustee or the Global Exchange Agent, if authorized by the Trustee
pursuant to Section 614, shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate
principal amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a part of
such temporary Global Security for definitive Debt Securities, the portion
of the principal amount and any interest thereon so exchanged shall be
endorsed by the Global Exchange Agent on a schedule to such temporary
Global Security, whereupon the principal amount and interest payable with
respect to such temporary Global Security shall be reduced for all purposes
by the amount so exchanged and endorsed. The definitive Debt Securities to
be delivered in exchange for any such temporary Global Security shall be in
bearer form, registered form, global registered form or global bearer form,
or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the
beneficial owner thereof; PROVIDED, HOWEVER, that, in the case of the
exchange of the temporary Global Security for definitive Bearer Securities
(including a definitive Global Bearer Security), upon such presentation by
the Depositary, such temporary Global Security shall be accompanied by a
certificate signed by
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Euroclear as to the portion of such temporary Global Security held for its
account then to be exchanged and a certificate signed by CEDEL S.A. as to
the portion of such temporary Global Security held for its account then to
be exchanged, each in the form set forth in Exhibit B to this Indenture,
unless such certificate(s) shall have been provided earlier pursuant to
section 304(b)(v) hereof; and PROVIDED, FURTHER, that definitive Bearer
Securities (including a definitive Global Bearer Security) shall be
delivered in exchange for a portion of a temporary Global Security only in
compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a
series in a temporary Global Security shall be exchanged for definitive
Debt Securities of the same series and of like tenor and terms following
the Global Exchange Date when the account holder instructs Euroclear or
CEDEL S.A., as the case may be, to request such exchange on such account
holder's behalf and, in the case of the exchange of the temporary Global
Security for definitive Bearer Securities (including a definitive Global
Bearer Security), unless such certificate(s) shall have been provided
earlier pursuant to Section 304(b)(v) hereof, the account holder delivers
to Euroclear or CEDEL S.A., as the case may be, a certificate in the form
set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated
no earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Global Exchange Agent, any authenticating agent appointed for
such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Debt Securities must
bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt
Securities in person at the offices of Euroclear and CEDEL S.A. Definitive
Debt Securities in bearer form to be delivered in exchange for any portion
of a temporary Global Security shall be delivered only outside the United
States.
(v) Until exchanged in full as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same
series and of like tenor and terms authenticated and delivered hereunder,
except that interest payable on a temporary Global Security on an Interest
Payment Date shall be payable to Euroclear and CEDEL S.A. on such Interest
Payment Date only if there has been delivery by Euroclear and CEDEL S.A. to
the Global Exchange Agent of a certificate or certificates in the form set
forth in Exhibit B to this Indenture dated no earlier than the first
Interest Payment Date, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if
applicable, A-2 to this Indenture dated no earlier than the first Interest
Payment Date. Any interest so received by Euroclear and CEDEL S.A. and not
paid as herein provided prior to the Global Exchange Date shall be returned
to the Global Exchange Agent which, upon expiration of two years
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after such Interest Payment Date, shall repay such interest to the Company
in accordance with Section 1003.
SECTION 305. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at one of the offices or agencies
to be maintained by the Company in accordance with the provisions of this
Section 305 and Section 1002, with respect to the Debt Securities of each series
which are Registered Securities, a register (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 Registered
Securities and of transfers of Registered Securities. Pursuant to Section 301,
the Company shall appoint, with respect to Debt Securities of each series which
are Registered Securities, a "Security Registrar" for the purpose of registering
such Debt Securities and transfers and exchanges of such Debt Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, 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 denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized denomination or denominations, of like tenor and terms and aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at
such office or agency. Bearer Securities may not be delivered in exchange for
Registered Securities.
At the option of the Holder, Registered Securities or Bearer
Securities of any series may be issued in exchange for Bearer Securities (except
as otherwise specified as contemplated by Section 301 with respect to a Bearer
Security in global form) of the same series, of any authorized denominations and
of like tenor and terms and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, 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 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
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 located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is
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surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor and terms after the close of business at such
office or agency of (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Debt Securities of such series or if at any time the Depositary for the
Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt
Securities of such series. If a successor Depositary for the Debt Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301(11) shall no longer be effective with respect
to the Debt Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary a new Debt Security
or Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
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(b) to such Depositary a new Global Security of like tenor and
terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or Bearer Securities, as shall be specified by the beneficial
owner thereof, if the Debt Securities of such series are issuable in either
form; PROVIDED, HOWEVER, that no definitive Bearer Security shall be delivered
in exchange for a temporary Global Security unless the Company or its agent
shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and,
if applicable, A-2 hereto; and PROVIDED FURTHER that delivery of a Bearer
Security shall occur only outside the United States; and PROVIDED FURTHER that
no definitive Bearer Security will be issued if the Company has reason to know
that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Debt Securities are so registered. The Trustee shall deliver Bearer
Securities issued in exchange for a Global Security pursuant to this Section to
the persons, and in such authorized denominations, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee; PROVIDED, HOWEVER, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and PROVIDED FURTHER that delivery of a Bearer Security shall occur only
outside the United States; and PROVIDED FURTHER that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the
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Company, the Security Registrar and the Trustee duly executed, by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt 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 transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any particular series to be redeemed or
exchanged for Capital Securities for a period of fifteen days preceding the
first publication of the relevant notice of redemption or, if Registered
Securities are outstanding and there is no publication, the mailing of the
relevant notice of redemption or exchange, or (ii) to register the transfer of
or exchange any Registered Security so selected for redemption or exchange in
whole or in part, except the unredeemed or unexchanged portion of such
Registered Security being redeemed or exchanged in part, or (iii) to exchange
any Bearer Security so selected for redemption or exchange except that such a
Bearer Security may be exchanged for a Registered Security of like tenor and
terms of that series, PROVIDED that such Registered Security shall be
simultaneously surrendered for redemption or exchange.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
United States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not
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contemporaneously outstanding, with coupons corresponding to the coupon, if any,
appertaining to such destroyed, lost or stolen Debt Security or to the Debt
Security to which such destroyed, lost or stolen coupon appertains; PROVIDED,
HOWEVER, that any such new Bearer Security will be delivered only in compliance
with the conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; PROVIDED, HOWEVER, that payment of principal of (and premium, if any)
and any interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States; and PROVIDED, FURTHER, that, with respect to any such coupons, interest
represented thereby (but not any additional amounts payable as provided in
Section 1006), shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons 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 and printing
expenses) connected therewith.
Every new Debt Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt
Security, or in exchange for a Bearer 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 Debt
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Debt Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt 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 Debt Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due
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in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of his having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (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 Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments the payments
of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holder
of such Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the Trustee,
without investment) be 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 and/or Eligible Instruments when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date. Unless the Trustee is acting as the
Security Registrar, promptly after such Special Record Date, the Company
shall furnish the Trustee with a list, or shall make arrangements
satisfactory to the Trustee with respect thereto, of the names and
addresses of, and principal amounts of Registered Securities of such series
held by, the Holders appearing on the Security Register at the close of
business on such Special Record Date. In the name and at the expense of
the Company, the Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
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to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the
close of business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities may be listed, and upon such notice as maybe required
by such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Subject to the limitations set forth in Section 1002, the Holder of
any coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
If any Registered Security is exchanged for Capital Securities after
any record date and on or prior to the next succeeding Interest Payment Date
(other than any Debt Security whose Maturity is prior to such Interest Payment
Date), interest whose Stated Maturity is on such Interest Payment Date shall be
paid by the Company on such Interest Payment Date notwithstanding such exchange,
and such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Debt Security is registered at the close
of business on such record date.
If any Bearer Security of a series is exchanged for Capital Securities
after any record date for the Registered Securities of such series and on or
prior to the next succeeding Interest Payment Date (other than any Debt Security
whose Maturity is prior to such Interest Payment Date), such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
and interest will be payable on such Interest Payment Date to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
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SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon 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.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. CANCELLATION.
Unless otherwise provided with respect to a series of Debt Securities,
all Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture, shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company unless by a Company Order the
Company shall direct that the cancelled Debt Securities or coupons be returned
to it.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
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SECTION 311. CERTIFICATION BY A PERSON ENTITLED TO DELIVERY OF A
BEARER SECURITY.
Whenever any provision of this Indenture or a Debt Security
contemplates that certification by given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall
not unreasonably be withheld.
SECTION 312. JUDGMENTS.
The Company may provide, pursuant to Section 301, for the Debt
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 301,
(a) the obligation, if any, of the Company to pay the principal of (and premium,
if any) and interest on the Debt Securities of any series and any appurtenant
coupons in a Foreign Currency, composite currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 301 is of the essence and
agrees that judgments in respect of such Debt Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of (and premium, if any) and interest on
such Debt Securities and any appurtenant coupons shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Designated Currency that the
Holder receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and cost of
exchange) in the country of issue of the Designated Currency in the case of
Foreign Currency or Dollars or in the international banking community in the
case of a composite currency on the Business Day immediately following the day
on which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect, including the provisions of Article Eighteen hereof (except as to any
surviving rights of registration of transfer or exchange of Debt Securities
herein expressly provided for and rights to receive payments of principal and
interest thereon and any right to receive additional amounts, as provided in
Section 1006) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
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(1) either
(A) all Debt Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered in exchange for
Registered Securities and maturing after such exchange, surrender of
which is not required or has been waived as provided in Section 305,
(ii) Debt Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Bearer Securities called
for redemption or surrendered for repayment and maturing after the
relevant Redemption Date or Repayment Date, as appropriate, surrender
of which has been waived as provided in Section 1106 or 1303 and
(iv) Debt Securities and coupons for whose payment money and/or
Eligible Instruments have 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 cancelled or for
cancellation; or
(B) all such Debt Securities 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) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice by the Trustee in the name, and at the expense, of
the Company.
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due
(and without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge the entire indebtedness on such
Debt Securities and coupons of such series for principal (and premium,
if any) and interest, and any mandatory sinking fund, repayment or
analogous payments thereon, on the scheduled due dates therefor to the
date of such deposit (in the case of Debt Securities and coupons which
have become due and payable) or to the Stated Maturity or Redemption
Date, if any, and all Repayment Dates (in the case of Debt Securities
repayable at the option of the Holders thereof);
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PROVIDED, HOWEVER, that in the event a petition for relief under the
Bankruptcy Reform Act of 1978 or a successor statute is filed with
respect to the Company within 91 days after the deposit, the
obligations of the Company under the Indenture with respect to the
Debt Securities of such series shall not be deemed terminated or
discharged, and in such event the Trustee shall be required to return
the deposited money and Eligible Instruments to the Company.
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company, and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Sections 607 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY AND ELIGIBLE INSTRUMENTS.
Subject to the provisions of the last paragraph of Section 1003, all
money and Eligible Instruments deposited with the Trustee pursuant to
Section 401, 403 or 1701 shall be held in trust and such money and the principal
and interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee.
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF DEBT
SECURITIES OF ANY SERIES.
If this Section 403 is specified, as contemplated by Section 301, to
be applicable to Debt Securities of any series, then, notwithstanding
Section 401, (i) the Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Debt Securities of any such series
and related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect,
including the provisions of Article Eighteen hereof (except as to the rights of
Holders of Debt Securities to receive, from the trust fund described in
subparagraph (1) below, payment of (x) the principal of (and premium, if any)
and any installment of principal of (and premium, if any) or interest on such
Debt Securities and related coupons on the Stated Maturity of such principal
(and premium, if any) or installment of principal (and premium, if any) or
interest or (y) any mandatory sinking fund payments or analogous payments
applicable to the Debt Securities of that series on that day on which such
payments are
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due and payable in accordance with the terms of this Indenture and of such Debt
Securities, the Company's obligations with respect to such Debt Securities under
Sections 304, 305, 306, 1002, 1003 and 1006 and the rights, powers, trusts,
duties and immunities of the Trustee hereunder, including those under
Section 607 hereof); and (iii) the Trustee, at the expense of the Company,
shall, upon Company Order, execute proper instruments acknowledging satisfaction
and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities of such
series and related coupons, with reference to this Section 403, the
Company has deposited or caused to be deposited with the Trustee
irrevocably, as trust funds in trust, money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due
(and without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of such Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge (i) the principal of (and premium,
if any) and interest on the Outstanding Debt Securities of that series
and related coupons on the Stated Maturity of such principal or
interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to Debt Securities of such series on the date on
which such payments are due and payable in accordance with the terms
of this Indenture and of such Debt Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable with
respect to the Outstanding Debt Securities of such series and related
coupons;
(3) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing on
the date of such deposit and no Event of Default under Section 501(1) or
Section 501(2) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 501(1) or
Section 501(2) shall have occurred and be continuing on the 91st day after
such date;
(5) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (a) the Company has received from, or there has been
published by, the Internal
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Revenue Service a ruling, or (b) since the date of this Indenture there has
been a change in applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of Debt Securities and related coupons of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge had
not occurred;
(6) if the Debt Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Debt Securities to be
delisted; and
(7) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
the entire indebtedness of all Outstanding Debt Securities and related
coupons have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; PROVIDED that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this
Section 403) of the Company under this Indenture with respect to any series of
Debt Securities, the obligations of the Company to the Trustee under
Section 607, and the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003, shall survive with respect to such series of Debt
Securities.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Debt
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
and the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(2) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or the consent by
the Company to the entry of a decree or order for relief in an involuntary
case under any such law; or
(3) any other Event of Default, if any, provided with respect to
Debt Securities of such series specified as contemplated by Section 301.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and its continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of and all accrued but unpaid interest on all the Debt Securities of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by such Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable. Upon payment of such amount, all obligations of the Company in
respect of the payment of principal of the Debt Securities of such series shall
terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
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(A) all overdue installments of interest on all Debt
Securities of such series and any related coupons,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
and any related coupons at the rate or rates prescribed therefor in
such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Debt Securities of such
series have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Debt Security or any related coupon when such interest becomes due
and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment,
when and as due by the terms of a Debt Security of such series, or
(4) default is made in any required designation of funds as
Securities Funds, or
(5) default is made in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (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 series of Debt
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Securities other than such series), and such default or breach continues
for a period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such 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,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest, sinking fund installment and interest, including the delivery of any
Capital Securities then required to be delivered, and, to the extent that
payment of such interest shall be legally enforceable, interest upon the overdue
principal (and premium, if any) and, upon overdue installments of interest, at
the rate or rates prescribed therefor in such Debt Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts (including the delivery of
any Capital Securities then required to be delivered) forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and the delivery of any Capital Securities required to be delivered and not so
delivered, or, in the case of the failure to deliver Capital Securities, money
equal to the principal amount of the Debt Securities for which the Capital
Securities were to be exchanged, and may prosecute such proceeding to judgment
of final decree, and may enforce the same against the Company or any other
obligor upon such Debt Securities and coupons and collect the moneys (or money
equal to the principal amount of any Debt Securities for which Capital
Securities were to be exchanged) 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 Debt Securities and coupons, wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 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 proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable
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as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceedings or otherwise,
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the Debt
Securities of such series and any appurtenant coupons 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 allowed in such judicial proceeding,
and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder 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, to pay to
the Trustee any amount due 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 any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
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 in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or the Debt
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Debt 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 Debt
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 (and premium,
if any) or interest, upon presentation of the Debt
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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 amounts then due and unpaid to the holders
of Senior Debt, to the extent required by Article Eighteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities and
any coupons, 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 amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest, respectively.
The Holders of each series of Debt Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Debt Securities and matured but unpaid
interest on such series of Debt Securities in the currency in which such
series of Debt Securities is denominated into Dollars at the Exchange Rate
as of the date of declaration of acceleration of the Maturity of the Debt
Securities; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Debt Securities of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Debt Securities of
such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
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(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other 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,
PREMIUM AND INTEREST AND TO EXCHANGE DEBT SECURITIES FOR
CAPITAL SECURITIES.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt 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 Section 307) interest on such Debt Security or payment of such
coupon on the respective Stated Maturity or Maturities expressed in such Debt
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be), to have the Debt
Securities exchanged for Capital Securities pursuant to Article Fourteen, if
applicable, and to institute suit for the enforcement of any such payment or
exchange, and such right shall not be impaired without the consent of such
Holder, SUBJECT, HOWEVER, to the provisions of Article Eighteen.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceedings 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 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 the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders 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.
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SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Debt
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 may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF DEBT SECURITIES.
The Holders of a majority in principal amount of the Outstanding Debt
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 Debt
Securities of such series, PROVIDED, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 601, 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 Responsible Officers of the
Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of such series or coupons
affected.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debt
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 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 a 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
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Debt Security or the payment of any coupons on or after the respective
Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in
the case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as the case may be) or for the enforcement of the right to
exchange any Debt Securities for Capital Securities as provided in Article
Fourteen.
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 whenever 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 benefits 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.
The duties and responsibilities of the Trustee shall be as provided in
the Trust Indenture Act. Notwithstanding the foregoing, 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
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reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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 DEFAULT.
If a default occurs hereunder with respect to Debt Securities of any
series the Trustee shall transmit by mail to all Holders of Debt Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; PROVIDED, HOWEVER, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or any related coupons or in the payment of any sinking
fund installment with respect to Debt Securities of such series or in the
exchange of Capital Securities for Debt 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 determines that the
withholding of such notice is in the interest of the Holders of Debt Securities
of such series. 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 Debt 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, coupon 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 and any
resolution of the Board of Directors shall 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 advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt
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Securities of such 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, coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney, other than any such books or records containing
information as to the affairs of the customers of the Company or any of its
subsidiaries; PROVIDED that the Trustee may examine such books and records
relating to customers to the extent that such books and records contain
information as to any payments made to such customers in their capacity as
Holders of Debt Securities; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; no Exchange Rate Agent, Capital Exchange Agent, Global Exchange
Agent, Depositary or Paying Agent shall be deemed an agent of the Trustee and
the Trustee shall not be responsible for any act or omission by any of them.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons or any Capital Securities. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds
thereof. The Trustee shall not be responsible for and makes no representations
to the Company's ability or authority to issue Bearer Securities or the
lawfulness thereof.
SECTION 605. MAY HOLD DEBT SECURITIES OR COUPONS.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Debt Securities and coupons, and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
agent.
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SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any Paying Agent shall be under any liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) 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);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust or 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.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a claim prior to the Debt Securities
and any coupons upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Debt Securities or any coupons. The claims of
the Trustee under this Section shall not be subject to the provisions of Article
Eighteen.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
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. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest with respect to Debt Securities of any series by virtue of being a
trustee under (a) this Indenture with respect to Debt Securities of any
particular series of Debt Securities other
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than that series or (b) the Indenture dated as of September 1, 1993 between
Norwest Corporation, a Delaware corporation, and Citibank, N.A., a national
banking association.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, and subject to supervision or examination by Federal or State
authority; PROVIDED, HOWEVER, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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 Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt 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 with respect
to the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to
any series of Debt Securities or a decree or order for relief by a court
having jurisdiction in the premises shall have been entered in respect of
the Trustee in an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law; or a decree or order by a court
having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or other similar official of the Trustee or of its property or
affairs, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee for the Debt
Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Debt Securities, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Debt
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt 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 Debt 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 Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt 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, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or
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the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Debt Security of such series for at
least six months may, subject to Section 514, 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 Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt 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 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 of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor Trustee
with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee upon payment of its charges and each successor
Trustee with respect to the Debt 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 Debt 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 Debt 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 Debt
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each
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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
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 and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series to which the appointment of such successor Trustee relates; but, on the
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 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,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the executing or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debt 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 Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company (or any other obligor upon
the Debt Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding collection of claims against the Company (or any
such other obligor).
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SECTION 614. AUTHENTICATING AGENT.
The Trustee shall upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication 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 must be
acceptable to the Company and must be a corporation organized and doing business
under the laws of the United States or of any State, having a combined capital
and surplus of at least $1,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or State
authorities or the equivalent foreign authority in the case of an authenticating
agent who is not organized and doing business under the laws of the United
States or of any State thereof or the District of Columbia.
The Trustee hereby initially appoints Norwest Bank Minnesota, N.A. as
its authenticating agent.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or
more series of Debt Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
any authenticating agent with respect to one or more series of Debt Securities
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 an authenticating agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee promptly
may appoint a successor authenticating agent. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become vested with all
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 Trustee agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall
be applicable to any authenticating agent.
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Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON
By ___________________________________________
AS AUTHENTICATING AGENT FOR THE TRUSTEE
By ___________________________________________
AUTHORIZED OFFICER
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee with
respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not more than 15 days after the Regular Record
Date in respect of the Debt Securities of such series or on May 15 and
November 15 of each year with respect to each series of Debt Securities for
which there are no Regular Record Dates, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of Registered Securities as of such Regular Record Date or May 1 or
November 1, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
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SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders of Registered
Securities received by the Trustee in its capacity as Paying Agent or Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished. The Trustee
shall preserve for at least two years the names and addresses of Holders of
Bearer Securities filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debt Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of any disclosure of
information as to the names and addresses of the Holders made pursuant to 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 Debt Securities pursuant to this
Indenture and at any other time required by the Trust Indenture Act, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture and such other matters as may be required pursuant to the
Trust Indenture Act in the manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
time and in the manner pursuant to such Act; PROVIDED that such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any political subdivision thereof or any
State thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest (including all additional amounts, if any, payable
pursuant to Section 1006) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been met.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by 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:
(1) to evidence the succession of another corporation to the
Company, and the assumption by such successor of the covenants of the
Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Debt
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee, or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities of other
authorized denominations or to permit or facilitate the issuance of Debt
Securities in uncertificated form, PROVIDED any such action shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination (a) shall become effective
only when there is no Debt Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to the
benefit of such provisions or (b) shall not apply to any Debt Security
Outstanding; or
(6) to establish the form or terms of Debt Securities of any series
as permitted by Sections 201 and 301; or
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(7) to evidence and provide for the acceptance of appointment
hereunder 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 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
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, PROVIDED such other provisions shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(9) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided such action shall not
adversely affect the interest of Holders of Debt Securities of any series
or any appurtenant coupons in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Debt Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by 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 under this Indenture of such Debt Securities of such series and any
related coupons; PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security or coupon
affected thereby,
(1) change the Stated Maturity of the principal or any installment
of principal of, or any installment of interest on, any Debt Security, or
reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption or repayment thereof, or change any obligation of
the Company to pay additional amounts pursuant to Section 1006 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment, or the
coin or currency in which any Debt Security or the interest thereon or any
coupon is payable, or impair any right to the delivery of Capital
Securities in exchange for Debt Securities provided for in this Indenture
or 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 or
repayment, on or after the Redemption Date or Repayment Date or Capital
Exchange Date, as the case may be), or
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(2) reduce the percentage in principal amount of the Outstanding
Debt 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 1604 for
quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1005, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security
affected thereby; PROVIDED, HOWEVER, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1005, or the deletion of this proviso, in accordance with the
requirements of Section 611(b) and 901(7); or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof; or
(5) impair the right of any Holder of Debt Securities of any series
to receive Capital Securities on any Capital Exchange Date for Debt
Securities of such series with a Market Value equal to the principal amount
of such Holder's Debt Securities of such series or in an amount sufficient
to provide proceeds upon sale by the Company in the Secondary Offering
equal to the principal amount of such Holder's Debt Securities of such
series; or
(6) impair the right of any Holder of Convertible Securities of any
series to convert such Debt Securities pursuant to Article Nineteen;
and PROVIDED, FURTHER, that no change shall be made in the provisions of Article
Eighteen that will affect adversely the holders of Senior Debt without the
consent of the holders of all Senior Debt Outstanding.
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 Debt Securities, or which
modifies the rights of the Holders of Debt 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 Debt Securities of any other
series.
It shall not be necessary for any Act of Holders of the Debt
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
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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 modifications 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 Debt 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 as then in effect.
SECTION 906. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt 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 Debt Securities of any series and any appurtenant coupons 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 Debt Securities of such series and any appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Debt Securities and any appurtenant coupons that it will duly and punctually pay
the principal of (and premium, if any) and interest on the Debt Securities and
any appurtenant coupons in accordance with the terms
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of the Debt Securities, any appurtenant coupons and this Indenture. Any
interest due on Bearer Securities on or before Maturity, other than additional
amounts, if any, payable as provided in Section 1006 in respect of principal of
(or premium, if any, on) such a Debt 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. For all purposes of this
Indenture, the exchange of Capital Securities for Debt Securities of any series
pursuant to the Indenture shall constitute full payment of principal of the Debt
Securities of such series being exchanged on any Capital Exchange Date for Debt
Securities of such series, without prejudice to any Holder's rights pursuant to
Section 1413.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Debt Securities an office or agency where Debt Securities (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Debt Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Debt Securities and this Indenture may be served. If Debt Securities of a
series are issuable as Bearer Securities, the Company will maintain, subject to
any laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 1006); PROVIDED, HOWEVER,
that if the Debt Securities of such series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of this
location, and any change in the location, of any 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 or demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all presentations, surrenders, notices and demands,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 1006) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, payment
of principal of and any premium and interest denominated in Dollars (including
additional amounts payable in respect thereof) on any Bearer Security may be
made at an office or agency of, and designated by, the Company located in the
United States if (but only if) payment of the full amount of such principal,
premium, interest or additional amounts in Dollars at
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all offices outside the United States maintained for the purpose by the Company
in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions and the Trustee receives an
Opinion of Counsel that such payment within the United States is legal. Unless
otherwise provided as contemplated by Section 301 with respect to any series of
Debt Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of such Place of Payment) where the Debt
Securities of one or more series and any appurtenant coupons (subject to the
preceding paragraph) may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for any series of Debt Securities for such purposes. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such other office or agency.
SECTION 1003. MONEY FOR DEBT 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 Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Debt Securities of such series and any
appurtenant coupons in trust for
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the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series or any appurtenant
coupons) in the making of any payment of principal of (and premium, if any)
or interest on the Debt Securities of such series or any appurtenant
coupons; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating its
obligations under this Indenture with respect to Debt Securities of any series
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.
Any principal and interest received on the Eligible Instruments
deposited with the Trustee or any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest on any Debt Security of any series or any
appurtenant coupons or any money on deposit with the Trustee or any Paying Agent
representing amounts deducted from the Redemption Price or Repayment Price with
respect to unmatured coupons not presented upon redemption or exercise of the
Holder's option for repayment pursuant to Section 1106 or 1303 and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money (including the principal and interest received on
Eligible Instruments deposited with the Trustee), 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 of general circulation in the Borough of Manhattan, The City of New
York, and each Place of Payment or mailed to each such Holder, 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.
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SECTION 1004. OFFICERS' CERTIFICATE AS TO DEFAULT.
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company ending after
the date hereof, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company,
stating whether or not to the best knowledge of the signer thereof the Company
is in compliance (determined without regard to any period of grace or
requirement of notice provided under this Indenture) in the performance and
observance of any of the terms, provisions and conditions of this Indenture,
and, if the Company shall be in default, specifying all such defaults and the
nature thereof of which they may have knowledge.
SECTION 1005. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition applicable to the Debt Securities of any series that is
determined pursuant to Section 301 to be subject to this provision if, before
the time for such compliance the Holders of at least 66 2/3% in principal amount
of the Debt Securities at the time Outstanding 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 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 1006. PAYMENT OF ADDITIONAL AMOUNTS.
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of (or premium,
if any) or interest on, or in respect of, any Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in the terms of such Debt Securities
and this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section 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.
If the Debt 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 that series of Debt Securities (or if the Debt Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made), and at least 10 days prior
to each date of payment of principal (and premium, if any) or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will
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furnish the Trustee and the Company's principal Paying Agent or Paying Agents,
if other than the Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal of (and
premium, if any) or interest on the Debt Securities of that series shall be made
to Holders of Debt Securities of that series or the related coupons who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Debt Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Debt Securities or coupons and the Company
will pay to the Trustee or such Paying Agent the additional amounts, if any,
required by the terms of such Debt Securities and the first paragraph of this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Debt 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 Debt 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 Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 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 and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any
redemption of Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series
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with like tenor and terms not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple thereof
which is also an authorized denomination) of the principal amount of Registered
Securities or Bearer Securities (if issued in more than one authorized
denomination) of such series of a denomination larger than the minimum
authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt 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 Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Debt Security to be redeemed, and that
interest thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only at
such place or places which are outside the United States, except as
otherwise provided in Section 1002,
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(7) that the redemption is for a sinking fund, if such is the case,
and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company, or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of the Debt Securities
to be redeemed) will provide money on or prior to the Redemption Date in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof which are to be
redeemed on that date; PROVIDED, HOWEVER, that deposits with respect to Bearer
Securities shall be made at least one Business Day prior to the Redemption Date
with a Paying Agent or Paying Agents located outside the United States except as
otherwise provided in Section 1002, unless otherwise specified as contemplated
by Section 301.
SECTION 1106. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Debt
Securities 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 Debt 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 Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and PROVIDED FURTHER, that installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Debt Securities, or one
or more
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Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
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 Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; PROVIDED, HOWEVER, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 1107. DEBT SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar 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 Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
as contemplated by Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any
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payment in excess of such minimum amount provided for by the term of Debt
Securities of any series is herein referred to an "optional sinking fund
payment". If provided for by the terms of Debt Securities of any series, the
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
Debt Securities of any series as provided for by the terms of Debt Securities of
such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT
SECURITIES.
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; PROVIDED that such
Debt Securities have not been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in
lieu of cash payments pursuant to this Section 1202, the principal amount of
Debt Securities to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Debt Securities for
redemption, except upon Company Request, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, PROVIDED, HOWEVER, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
SECTION 1203. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing 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, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt 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
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notice having been duly given, the redemption of such Debt Securities shall be
made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Debt Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 301 for Debt
Securities of such series) in accordance with this Article.
SECTION 1302. REPAYMENT OF DEBT SECURITIES.
Each Debt Security which is subject to repayment in whole or in part
at the option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
SECTION 1303. EXERCISE OF OPTION; NOTICE.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Debt Security to be repaid
in whole or in part together with written notice of the exercise of such option
at any office or agency of the Company in a Place of Payment, not less than 30
nor more than 45 days prior to the Repayment Date; PROVIDED, HOWEVER, that
surrender of Bearer Securities together with written notice of exercise of such
option shall be made at an office or agency located outside the United States
except as otherwise provided in Section 1002. Such notice, which shall be
irrevocable, shall specify the principal amount of such Debt Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Debt Security or an integral multiple thereof, and shall identify the Debt
Security to be repaid and, in the case of a partial repayment of the Debt
Security, shall specify the denomination or denominations of the Debt Security
or Debt Securities of the same series to be issued to the Holder for the portion
of the principal of the Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment 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 Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive
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the amount so deducted without interest thereon; PROVIDED, HOWEVER, that
interest represented by coupons shall be payable only at an office or agency
located outside the United States except as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so
surrendered which is not to be paid; PROVIDED, HOWEVER, that the issuance of a
Registered Security therefor shall be subject to applicable laws and
regulations, including provisions of the United States Federal income tax laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Debt Securities shall
relate, in the case of any Debt Security repaid or to be repaid only in part, to
the portion of the principal of such Debt Security which has been or is to be
repaid.
SECTION 1304. ELECTION OF REPAYMENT BY REMARKETING ENTITIES.
The Company may elect, with respect to Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, at any time prior to any Repayment Date to designate one or more
Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt
Securities of such series from the Holders thereof who give notice and surrender
their Debt Securities in accordance with Section 1303.
SECTION 1305. SECURITIES PAYABLE ON THE REPAYMENT DATE.
Notice of exercise of the option of repayment having been given and
the Debt Securities so to be repaid having been surrendered as aforesaid, such
Debt Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the
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price therein specified and from and after the Repayment Date such Debt
Securities shall cease to bear interest and shall be paid on the Repayment Date,
and the coupons for such interest appertaining to Bearer Securities so to be
repaid, except to the extent provided above, shall be void, unless the Company
shall default in the payment of such price in which case the Company shall
continue to be obligated for the principal amount of such Debt Securities and
shall be obligated to pay interest on such principal amount at the rate borne by
such Debt Securities from time to time until payment in full of such principal
amount.
ARTICLE FOURTEEN
EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES
SECTION 1401. APPLICABILITY OF ARTICLE.
If an Officers' Certificate or supplemental indenture pursuant to
Section 301 provides for the exchange of Capital Securities for Debt Securities
of any series at the election of the Company or otherwise, Debt Securities of
such series shall be exchanged for Capital Securities in accordance with their
terms and (except as otherwise specified in such Officers' Certificate or
supplemental indenture) in accordance with this Article.
SECTION 1402. EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES AT
STATED MATURITY.
At the Stated Maturity of Debt Securities of any series which may be
exchanged, subject to prepayment prior to such Stated Maturity on the Capital
Exchange Date selected by the Company for Debt Securities of such series, as
described below, early exchange pursuant to Section 1403 or payment in cash
pursuant to Section 502, 1416 or 1417, the Company shall exchange Capital
Securities with a Market Value equal to the principal amount of the Outstanding
Debt Securities of such series for the Debt Securities of such series in whole.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent as to the type of Capital Securities to be exchanged
for the Debt Securities of such series on the Capital Exchange Date for Debt
Securities of such series. Such notice shall include a form of Capital Security
Election Form substantially as set forth in Section 1409, shall make the
statements and contain the information included in Section 1404(a), and shall be
given no less than 90 days prior to the Stated Maturity of such Debt Securities.
Notice of such Capital Exchange Date, together with the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series, or the minimum denomination of the Debt Securities of such
series, if larger, shall also be given by the Company in the manner required by
Section 1404(b) not less than three Business Days prior to such Capital Exchange
Date.
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The Capital Exchange Date for any prepayment of Debt Securities of
each series may be selected by the Company to be any date between a date 60 days
prior to the Stated Maturity of such Debt Securities and such Stated Maturity,
inclusive, and to be the date of the closing of the Secondary Offering for Debt
Securities of such series. In the event the Company fails to effect such
Secondary Offering, the Capital Exchange Date will be the Stated Maturity of the
Debt Securities of such series. Notice of each such Capital Exchange Date,
together with the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the minimum denomination
of the Debt Securities of such series, if larger, shall also be given by the
Company in the manner required by Section 1404(b) not less than three Business
Days prior to such Capital Exchange Date.
The Company will effect each Secondary Offering such that the closing
of the Secondary Offering will occur on the Capital Exchange Date.
SECTION 1403. RIGHT OF EARLY EXCHANGE OF CAPITAL SECURITIES FOR DEBT
SECURITIES.
The Debt Securities of any series to be exchanged may be exchanged at
the election of the Company, as a whole or from time to time in part, prior to
the Stated Maturity thereof for Capital Securities with a Market Value equal to
the principal amount of such Debt Securities on any early Capital Exchange Date,
together with accrued interest to such Capital Exchange Date.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent not less than 90 days nor more than 120 days prior to
any early Capital Exchange Date for Debt Securities of such series, which notice
shall include a form of Capital Security Election Form substantially as set
forth in Section 1409 and make the statements and contain the information
included in Section 1404(a). Notice of each such early Capital Exchange Date,
together with the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the minimum denomination
of such series, if larger, shall also be given by the Company in the manner
required by Section 1404(b) not less than three Business Days prior to such
early Capital Exchange Date.
The Company may at its option accelerate any such Capital Exchange
Date within the 60-day period prior to such Capital Exchange Date by giving
notice of such accelerated Capital Exchange Date, together with the amount of
Capital Securities being exchanged for each $1,000 principal amount of Debt
Securities of such series, or the minimum denomination of such series, if
larger, in the manner required by Section 1404(b) not less than three Business
Days prior to such accelerated Capital Exchange Date.
The Company will effect each Secondary Offering such that the closing
of such Secondary Offering will occur on the Capital Exchange Date.
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SECTION 1404. NOTICES OF EXCHANGE.
(a) All notices of exchange subject to this paragraph shall state:
(1) the type of Capital Securities to be exchanged for the Debt
Securities of such series on the Capital Exchange Date for Debt Securities
of such series;
(2) the proposed Capital Exchange Date;
(3) that each Holder of Debt Securities of such series being
exchanged will receive on such Capital Exchange Date accrued and unpaid
interest in cash and may elect to receive on such Capital Exchange Date
Capital Securities with a Market Value equal to the principal amount of the
Debt Securities of such series owned by such Holder and that, in the
absence of any such election by the Holder, such Holder will be deemed to
have received on such Capital Exchange Date Capital Securities having such
Market Value and to have elected to have such Capital Securities sold for
such Holder by the Company in the related Secondary Offering for cash
proceeds to such Holder on such Capital Exchange Date equal to the
aggregate principal amount of all Debt Securities of such series being
exchanged owned by such Holder;
(4) that on such Capital Exchange Date the Capital Exchange Price
will become due and payable upon each such Debt Security to be exchanged
and that interest thereon will cease to accrue on and after said date;
(5) if less than all the Outstanding Debt Securities of any series
are to be exchanged, the identification and principal amount of the
particular Debt Securities to be exchanged;
(6) that each Holder for whom Capital Securities are being offered
in the Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the
Company deems necessary or appropriate to effect such Secondary Offering;
(7) (A) that the Company will assume, unless advised to the
contrary in writing within 30 days after the date of notice of exchange,
that the Capital Securities are to be offered for the account of the
Holder, that such Holder has not held any position, office or other
material relationship with the Company within three years preceding the
Secondary Offering, that the Holder owns no other Capital Securities, and
that after completion of the Secondary Offering the Holder will own less
than one percent of the class of such Capital Securities, and (B) that if
any of these assumptions is not correct, the Holder shall promptly so
advise the Company;
(8) the Place or Places of Capital Exchange;
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(9) that Bearer Securities may be surrendered for payment or
exchange only at a Place or Places of Capital Exchange which are outside
the United States, except as otherwise provided in Section 1002; and
(10) the CUSIP number, if any.
(b) Each notice of exchange subject to this paragraph shall be
given in the manner provided in Section 106 to each Holder of Debt Securities to
be exchanged, and the Company shall forthwith give written notice thereof to the
Trustee and the Capital Exchange Agent.
(c) (1) Except as may otherwise be specified pursuant to
Section 301 for Debt Securities of any series, if less than all the Debt
Securities of any series are to be exchanged, the Company shall at least 135
days prior to the related Capital Exchange Date (unless a shorter period shall
be satisfactory to the Trustee) notify the Trustee of such Capital Exchange Date
and of the principal amount of Debt Securities of such series to be exchanged
and the particular Debt Securities to be exchanged shall be selected not more
than 135 days prior to the related Capital Exchange Date by the Trustee, from
the Outstanding Debt Securities of such series not previously exchanged, by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for exchange of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Registered or Bearer Securities of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
In any case where Debt Securities of such series are registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Debt Security of such
series.
(2) The Trustee shall promptly notify the Company in writing of the
Debt Securities selected for exchange and, in the case of any Debt Securities
selected for partial exchange, the principal amount thereof to be exchanged.
(3) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the exchange of Debt Securities
shall relate, in the case of any Debt Securities exchanged or to be exchanged
only in part, to the portion of the principal amount of such Debt Security which
has been or is to be exchanged.
SECTION 1405. RIGHTS AND DUTIES OF HOLDERS OF DEBT SECURITIES TO BE
EXCHANGED FOR CAPITAL SECURITIES.
(a) Subject to Section 503, and without prejudice to the rights
pursuant to Section 1413 of Holders of Debt Securities of any series to be
exchanged, no Holder of Debt Securities of such series shall be entitled to
receive any cash from the Company on any Capital Exchange Date or at the Stated
Maturity of any Debt Security of such series except from the proceeds of the
sale of such Holder's Capital Securities in the related Secondary Offering and
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except as provided herein with respect to fractional Capital Securities, amounts
equal to expenses of the sale in the related Secondary Offering of such Capital
Securities, accrued and unpaid interest and acceleration upon an Event of
Default. In the event that the Company does not effect such Secondary Offering,
such Holder will receive Capital Securities with a Market Value equal to the
principal amount of Debt Securities of such series owned by such Holder which
are subject to such exchange and not cash other than in lieu of any fractional
Capital Securities and for accrued and unpaid interest, without prejudice to
such Holder's rights pursuant to Section 1413.
(b) Each Holder for whom Capital Securities are being offered in
the Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the Company
deems necessary or appropriate to effect such Secondary Offering.
(c) Unless advised to the contrary in writing within 30 days
following the date of the notice described in Section 1404(a) by any Holder for
whom Capital Securities are being offered in the Secondary Offering, the Company
shall assume for the purposes of any Secondary Offering that the Capital
Securities are to be offered for the account of such Holder, that such Holder
has not held any position, office or other material relationship with the
Company within three years preceding the Secondary Offering, that such Holder
owns no other Capital Securities, and that after completion of the Secondary
Offering such Holder will own less than one percent of the class of such Capital
Securities.
(d) Each Holder for whom Capital Securities are being offered in
the Secondary Offering agrees to indemnify and hold harmless the Company, any
other Holder, and any underwriter, agent or other similar person from and
against any and all losses, claims, damages and liabilities resulting from or
based upon any untrue statement or alleged untrue statement of any material fact
contained in any notice of exchange, any offering memorandum or selling document
or registration statement relating to the Secondary Offering, any preliminary
prospectus or prospectus contained therein, or any amendment thereof or
supplement thereto, or resulting from or based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which untrue statement,
alleged untrue statement, omission or alleged omission is made therein (i) in
reliance upon and in conformity with any written information furnished to the
Company by or on behalf of any such Holder specifically for use in connection
with the preparation thereof or (ii) because of such Holder's failure to advise
the Company in writing that any of the assumptions described in
Section 1404(a)(7)(A) and Subsection (c) of this Section is incorrect.
(e) In order for any Holder who has duly returned a Capital
Security Election Form to receive Capital Securities on any Capital Exchange
Date for any Debt Security of any series, (1) the Holder of any Registered
Security to be exchanged shall surrender such Debt Security (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 of any Registered Security or his attorney duly authorized in
writing) to the Capital Exchange Agent on the Capital Exchange Date, and (2) the
Holder of any Bearer Security to be
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exchanged shall surrender such Debt Security and all unmatured coupons and all
matured coupons in default with the Capital Security Election Form at a Place of
Capital Exchange outside the United States designated pursuant to
Section 1404(a)(8) except as otherwise provided in Section 1002. If the Holder
of a Bearer Security is unable to produce any such Debt Security or coupons, the
surrender of such Debt Security 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 Capital Exchange Agent harmless in respect
of such Debt Security or coupons. Except as provided in Section 307, no payment
or adjustment shall be made upon any exchange on account of any interest accrued
on any Debt Securities surrendered for exchange or on account of any dividends
or interest on the Capital Securities issued upon exchange.
(f) Debt Securities of any series to be exchanged shall be deemed
to have been exchanged on the Capital Exchange Date therefor in accordance with
the foregoing provisions, and at such time the rights of the Holders of such
Debt Securities as Holders shall cease (subject to the provisions of Section 307
and without prejudice to the rights of Holders of Debt Securities of such series
pursuant to Section 1413), and the Person or Persons entitled to receive the
Capital Securities issuable upon such exchange shall be treated for all purposes
as the record holder or holders of such Capital Securities at such time.
SECTION 1406. ELECTION TO EXCHANGE.
The election of the Company to exchange Capital Securities for Debt
Securities pursuant to Section 1403 shall be evidenced by a Board Resolution.
SECTION 1407. DEPOSIT OF CAPITAL EXCHANGE PRICE.
On any Capital Exchange Date for Debt Securities of any series which
may be exchanged, the Company shall deposit with the Trustee or with a Capital
Exchange Agent in the Borough of Manhattan, The City of New York (or, if the
Company is acting as Capital Exchange Agent, segregate and hold in trust as
provided in Section 1003) Capital Securities and an amount of money which
together are sufficient to pay the Capital Exchange Price of, and (except if
such Capital Exchange Date shall be an Interest Payment Date) accrued interest
on, all the Debt Securities of such series or portions thereof which are to be
exchanged on that date; PROVIDED, HOWEVER, that deposits with respect to Bearer
Securities shall be made with a Capital Exchange Agent or Capital Exchange
Agents located outside the United States except as otherwise provided in
Section 1002, unless otherwise specified as contemplated by Section 301.
SECTION 1408. DEBT SECURITIES DUE ON CAPITAL EXCHANGE DATE; DEBT
SECURITIES EXCHANGED IN PART.
Notice of exchange having been given as aforesaid, the Debt Securities
of any series so to be exchanged shall, on the Capital Exchange Date for such
Debt Securities, become due and payable at the Capital Exchange Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Capital Exchange Price and accrued interest) Debt
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Securities of such series to be exchanged shall cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities to be exchanged,
except to the extent provided below, shall be void. Upon surrender of any Debt
Security of such series for exchange in accordance with said notice, such Debt
Security shall be paid by the Company at the Capital Exchange Price, together
with accrued interest to the Capital Exchange Date; PROVIDED, HOWEVER, that if
such Capital Exchange Date is an Interest Payment Date, the interest payable on
such date shall be paid to the Holder of Debt Securities of such series
according to the terms of the Debt Securities of such series and the provisions
of Section 307; and PROVIDED FURTHER, that exchanges of Bearer Securities shall
be made only and installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Capital Exchange Date shall be payable only at an
office or agency located outside the United States except as otherwise provided
in Section 1002 and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those Bearer Securities and coupons.
If any Bearer Security surrendered for exchange shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Capital Exchange Price an
amount equal to the face amount of all missing coupons, or the surrender of such
missing 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 Capital Exchange Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to the Trustee or Capital Exchange Agent any
such missing coupon in respect of which a deduction shall have been made from
the Capital Exchange Price, such Holder shall be entitled to receive the amount
so deducted without interest thereon; PROVIDED, HOWEVER, that interest on Bearer
Securities shall be payable only at an office or agency located outside of the
United States except as otherwise provided in Section 1002.
If any Debt Security of any series called for exchange shall not be so
paid or exchanged upon surrender thereof for exchange, the principal shall,
until paid, bear interest from such Capital Exchange Date at the rate or rates
prescribed therefor in such Debt Security; PROVIDED, HOWEVER, that in the case
of Bearer Securities, any such principal and interest thereon shall be paid at
an office or agency located outside the United States except as otherwise
provided in Section 1002.
Any Registered Security which is to be exchanged only in part shall be
surrendered as provided herein (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 or his attorney duly
authorized in writing) and the Company shall execute, the Trustee shall
authenticate and there shall be delivered to the Holder of such Debt Security
without service charge a new Registered Security or Securities of the same
series, of any authorized denomination or denominations as requested by such
Holder in aggregate principal amount equal to and in exchange for the
unexchanged portion of principal of the Debt Security so surrendered.
Any Bearer Security which is to be exchanged only in part shall be
surrendered as provided herein and the Company shall execute, the Trustee shall
authenticate and there shall be delivered to the Holder of such Debt Security
without service charge a new Registered Security or
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Securities or new Bearer Security or Securities (and all appurtenant unmatured
coupons and coupons in default) or any combination thereof of the same series,
of any surrendered denomination or denominations as requested by such Holder in
aggregate principal amount equal to and in exchange for the unexchanged portion
of principal of the Debt Security so surrendered; PROVIDED, HOWEVER, the
issuance of a Registered Security therefor shall be subject to applicable laws
and regulations, including provisions of the United States federal income tax
laws and regulations in effect at the time of the exchange; neither the Company,
the Trustee nor the Security Registrar shall issue Registered Securities in
exchange for Bearer Securities if it has received an Opinion of Counsel that as
a result of such exchanges the Company would suffer adverse consequences under
the United States Federal income tax laws then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the Company delivers to the Trustee a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Orders to the Security Registrar.
SECTION 1409. FORM OF CAPITAL SECURITY ELECTION FORM.
The form of Capital Security Election Form shall be substantially as
follows with such additions, deletions or changes thereto as may be approved by
the Company:
CAPITAL SECURITY ELECTION FORM
To: [Insert Names and Addresses
of Capital Exchange Agents]
The undersigned Holder of [insert title of Debt Security] ("Debt
Securities") of Norwest Corporation hereby elects to receive on the Capital
Exchange Date determined pursuant to the Indenture dated as of __________, ____
("Indenture"), between Norwest Corporation and
_________________________________________________, as Trustee, and referred to
in the notice of exchange published or delivered to the undersigned with this
Capital Security Election Form, Capital Securities of Norwest Corporation with a
Market Value equal to the principal amount of the Debt Securities being
exchanged owned by the undersigned Holder and, in the case of Bearer Securities,
delivered herewith together with all coupons appertaining thereto. Unless this
Capital Security Election Form together with, in the case of Bearer Securities,
such Bearer Securities and coupons, is received by any Capital Exchange Agent
named above at an address shown above on or prior to
______________________________, the Holder will be deemed to have elected to
participate in the sale of the Holder's Capital Securities in the Secondary
Offering and will receive cash on the Capital Exchange Date in an amount equal
to the principal amount of all Debt Securities being exchanged owned by the
Holder. All terms used herein and not otherwise defined herein shall have the
meanings specified in the Indenture.
Dated ______________________ _______________________________________
Name of Holder
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SECTION 1410. FRACTIONAL CAPITAL SECURITIES.
No fractional Capital Securities shall be issued upon exchange for any
Debt Securities. If more than one Debt Security of any series shall be
surrendered for exchange at one time by the same Holder, the amount of all
Capital Securities which shall be issuable upon exchange thereof shall be
computed on the basis of the aggregate principal amount of Debt Securities of
such series so surrendered. In lieu of issuing any fractional Capital Security,
the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the Market Value of the Capital Security.
SECTION 1411. COMPANY TO OBTAIN GOVERNMENTAL AND REGULATORY APPROVALS.
The Company covenants that if any Capital Securities required to be
exchanged for Debt Securities hereunder require registration with or approval of
any governmental authority under any federal or state law, or any national
securities exchange, before such Capital Securities may be issued, the Company
will in good faith and as expeditiously as possible endeavor to cause such
Capital Securities to be duly registered or approved, as the case may be;
PROVIDED, HOWEVER, that nothing in this Section shall be deemed to affect in any
way the obligation of the Company to exchange Capital Securities for Debt
Securities as provided in this Article.
SECTION 1412. TAXES ON EXCHANGE.
The Company will pay any and all transfer, stamp or similar taxes that
may be payable in respect of the issue or delivery of Capital Securities in
exchange for Debt Securities pursuant hereto.
SECTION 1413. COVENANTS AS TO CAPITAL SECURITIES AND SECONDARY
OFFERING.
(a) The Company covenants that it will issue, or cause to be
issued, Capital Securities of the type, in the amounts and at the times required
by this Indenture.
(b) The Company covenants that all Capital Securities which may be
issued in exchange for Debt Securities will upon issuance be duly and validly
issued and, if applicable, fully paid and nonassessable.
(c) The Company unconditionally undertakes to sell Capital
Securities in each Secondary Offering (and to bear all expenses of each
Secondary Offering, including underwriting discounts and commissions) at the
times and in the manner required by this Indenture unless all Holders have duly
elected to receive Capital Securities on the related Capital Exchange Date.
(d) The Company agrees to indemnify and hold harmless in connection
with any Secondary Offering any Holder for the account of whom Capital
Securities are being offered and
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sold from and against any and all losses, claims, damages and liabilities
resulting from or based upon any untrue statement or alleged untrue statement of
any material fact contained in any notice of exchange, any offering memorandum
or selling document or registration statement relating to the Secondary
Offering, any preliminary prospectus or prospectus contained therein, or any
amendment thereof or supplement thereto, or resulting from or based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
resulting from the Company's failure to comply with Section 1411; PROVIDED,
HOWEVER, the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement, alleged untrue statement, omission or alleged omission made
therein (i) in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder specifically for use
in connection with the preparation thereof or (ii) because of such Holder's
failure to advise the Company in writing that any of the assumptions described
in Section 1404(a)(7)(A) is incorrect. In connection with any Secondary
Offering, the Company agrees to obtain appropriate indemnification of any Holder
for the account of whom Capital Securities are being offered and sold in any
Secondary Offering from any underwriter, agent or other similar person.
SECTION 1414. PROVISION IN CASE OF CONSOLIDATION, MERGER OR TRANSFER
OF ASSETS.
In case of any consolidation of the Company with, or merger of the
Company into, any other corporation (other than a consolidation or merger in
which the Company is the continuing corporation), or in case of any conveyance
or transfer of the properties and assets of the Company substantially as an
entirety, the corporation formed by such consideration or the corporation into
which the Company shall have been merged or the corporation which shall have
acquired such assets of the Company, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Debt Security then Outstanding shall have the right thereafter to receive
securities of such successor on the Capital Exchange Date for such Debt Security
with a Market Value equal to the principal amount of such Debt Security. The
above provisions of this Section shall similarly apply to successive
consolidations, mergers, conveyances or transfers.
SECTION 1415. RESPONSIBILITY OF TRUSTEE.
The Trustee shall not at any time be under any duty or responsibility
to any Holder of Debt Securities of any series to be exchanged to determine the
Market Value of any Capital Securities delivered in exchange for Debt Securities
of such series and may rely on and shall be entitled to receive prior to any
Capital Exchange Date for Debt Securities of such series an Officers'
Certificate of the Company as to the Market Value of the Capital Securities
being exchanged for the Debt Securities of such series and the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series or the minimum denomination of such series, if larger, and that
such Capital Securities qualify as Capital Securities under the definition
thereof contained herein. The Trustee shall not be accountable with respect to
the validity or value (or the kind or amount) of any Capital Securities which
may at any time be issued or delivered in exchange for any Debt Security; and
the Trustee does not make any
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representation with respect thereto. The Trustee shall not be responsible for
any failure of the Company to issue, transfer or deliver any Capital Securities
or Capital Security certificates or other securities or property upon the
surrender of any Debt Security for the purpose of exchange or to comply with any
of the covenants of the Company contained in this Article.
SECTION 1416. REVOCATION OF OBLIGATION TO EXCHANGE CAPITAL SECURITIES
FOR DEBT SECURITIES.
The Company's obligations to exchange Capital Securities for Debt
Securities of any series as provided in Section 1402 is absolute and
unconditional; PROVIDED, HOWEVER, that such obligation may be revoked at the
option of the Company at any time on not less than 60 days' prior notice given
in the manner provided in Section 106 to the Holders of Debt Securities of such
series, the Trustee and the Capital Exchange Agent, if the Company shall
determine that under regulations then in effect of the Company's Primary Federal
Regulator either the Debt Securities are no longer includable as capital or it
is no longer necessary for the Company to be obligated to exchange Capital
Securities for Debt Securities in order for the Debt Securities to maintain the
same capital treatment as they are then receiving under the regulations or if
approval of the Primary Federal Regulator is obtained for such revocation.
In the event such obligation is revoked
(a) the Company will pay the Debt Securities of such series in cash
at 100% of the principal amount thereof on the Stated Maturity thereof, and
(b) the Company may, at any time on or after a date selected by the
Company, on not less than 60 days' prior notice given in the manner provided in
Section 106 to the Holders of Debt Securities of such series and the Trustee,
redeem the Debt Securities of such series, in whole or in part, for cash at 100%
of the principal amount thereof, plus accrued interest to the Redemption Date.
SECTION 1417. OPTIONAL SECURITIES FUNDS.
(a) (1) With respect to Debt Securities of any series for which an
Officers' Certificate or supplemental indenture pursuant to Section 301
provides that the Debt Securities of such series are exchangeable for
Capital Securities, the Company may elect to establish a fund (referred to
herein as the "Optional Securities Funds") to which funds may at any time
be designated by the Company as provided in Section 1502 as if such
Optional Securities Funds were Securities Funds (as defined in Article
Fifteen) to be used to pay the principal of the Debt Securities of such
series.
(2) Notwithstanding any provisions to the contrary contained in
this Indenture or in the Debt Securities of any series, neither funds
designated as Optional Securities Funds nor any other property from time to
time held as Optional Securities Funds shall be deemed to be for any
purpose property of the Holders or trust funds for the benefit of the
Holders,
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and the Optional Securities Funds shall not constitute security for the
payment of the Debt Securities.
(b) In lieu of, or in addition to, any exchange of Capital
Securities for Debt Securities of any series which may be made in accordance
with the provisions of Sections 1402 and 1403, the Company may elect to redeem
the Debt Securities of such series in accordance with the provisions of
Section 1106 and the terms of the Debt Securities of each series, in whole or in
part, by paying the principal of such Debt Securities with funds designated as
Optional Securities Funds at a price equal to the percentage of the principal
amount established in the terms of the Debt Securities of such series on the
Redemption Date of the Debt Securities to be so redeemed, and (except if such
Redemption Date shall be an Interest Payment Date) by paying accrued interest on
such Debt Securities. If such Redemption Date is an Interest Payment Date, the
interest payable on such date shall be paid to the Holder of Debt Securities of
such series according to the terms of the Debt Securities of such series and the
provisions of Section 307.
(c) The Company shall give notice of such proposed redemption in
the manner provided in Section 106 to the Holders of the Debt Securities of such
series within the time prescribed for the giving of the initial notice in
Section 1402 or 1403, depending upon the Redemption Date selected by the
Company. Such notice shall state the Redemption Date and the place or places
where the Debt Securities of the series to be paid are to be surrendered for
payment; PROVIDED, HOWEVER, if such redemption is of less than all of the Debt
Securities of such series and is to be made on a Capital Exchange Date specified
in accordance with Section 1402 or 1403, then such notice may be incorporated
into any initial notice of such Capital Exchange Date and PROVIDED that no
notice of any redemption may be given unless there are sufficient Optional
Securities Funds to pay the principal amount of the Debt Securities to be
redeemed.
(d) If less than all the Debt Securities of any series are to be so
redeemed, then Sections 1404(c) and 1408 shall apply to the redemption in the
same manner as if such Debt Securities were to be exchanged for Capital
Securities.
(e) Funds designated as Optional Securities Funds shall be released
from such designation under the circumstances described in Section 1503.
ARTICLE FIFTEEN
SECURITIES FUNDS
SECTION 1501. CREATION OF SECURITIES FUNDS.
A fund (the "Securities Funds") will be established when specified in
an Officers' Certificate or supplemental indenture pursuant to Section 301 for
the Debt Securities of any series pursuant to which funds may be designated by
the Company as provided in Section 1502, to be used to pay the principal of the
Debt Securities of that series.
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Notwithstanding any provision to the contrary contained in this
Indenture or in the Debt Securities of any series, neither funds designated as
Securities Funds nor any other property from time to time held as Securities
Funds shall be deemed to be for any purpose property of the Holders or trust
funds for the benefit of the Holders, and the Securities Funds shall not
constitute security for the payment of the Debt Securities.
SECTION 1502. DESIGNATIONS OF SECURITIES FUNDS.
The Securities Funds will consist of amounts equal to (i) the net
proceeds of the sale of Capital Securities for cash from time to time after the
date of initial issuance of the Debt Securities of any series for which funds
may be designated by the Company as provided in this Section, and (ii) the
market value, as determined by the Company, of Capital Securities sold from time
to time after the date of initial issuance of the Debt Securities of such series
in exchange for other property, less the expenses to effect any such exchanges,
and (iii) other funds which the regulations of the Primary Federal Regulator
then permit for the payment of principal of "mandatory convertible securities
(equity commitment notes)" as defined in such regulations; PROVIDED that (x) the
Company has designated such amounts as Securities Funds on its books and records
in the manner required by the Primary Federal Regulator, and (y) there shall be
deducted from the Securities Funds an amount equal to the amount of any funds
used to redeem or repay the Debt Securities of such series for which Securities
Funds are required to be designated or any similar securities.
SECTION 1503. COVENANT OF THE COMPANY TO OBTAIN SECURITIES FUNDS.
Notwithstanding anything else contained herein, the Company hereby
covenants and agrees that with regard to the Debt Securities of any series which
by its terms requires the designation of Securities Funds (i) by the Interest
Payment Date which occurs on or next preceding the date when one-third of the
period from the date of issuance of the Debt Securities of such series to their
Stated Maturity has elapsed, it will have obtained Securities Funds in an amount
that will equal at least one-third of the original aggregate principal amount of
the Debt Securities of such series (or such lesser amount as the Primary Federal
Regulator may permit from time to time) and will have prepared and delivered to
the Trustee an Officers' Certificate to the foregoing effect, (ii) by the
Interest Payment Date which occurs on or next preceding the date when two-thirds
of the period from the date of issuance of the Debt Securities of such series to
their Stated Maturity has elapsed, it will have obtained Securities Funds in an
amount that will equal at least two-thirds of the original aggregate principal
amount of the Debt Securities of such series (or such lesser amount as the
Primary Federal Regulator may permit from time to time) and will have prepared
and delivered to the Trustee an Officers' Certificate to the foregoing effect,
and (iii) by 60 days prior to the Stated Maturity of the Debt Securities of such
series, it will have obtained Securities Funds in an amount that will equal not
less than the original aggregate principal amount of the Debt Securities of such
series (or such lesser amount as the Primary Federal Regulator may permit from
time to time) and will have prepared and delivered to the Trustee an Officers'
Certificate to the foregoing effect; PROVIDED, HOWEVER, that such covenant and
agreement of the Company shall be cancelled and
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amounts theretofore designated as Securities Funds will be released from such
designation in the event and to the extent that the Company shall determine that
under the regulations of the Company's Primary Federal Regulator either the Debt
Securities are no longer includable as capital or it is no longer necessary for
the Company to be obligated to pay the principal of the Debt Securities out of
Securities Funds in order for the Debt Securities to maintain the same capital
treatment as they are then receiving under such regulations, in the event and to
the extent that approval of the Primary Federal Regulator is obtained for such
cancellation and release or in the event and to the extent that the Company
shall have exchanged or redeemed such Debt Securities pursuant to the terms of
such Debt Securities of such series from a source other than amounts designated
as Securities Funds.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1601. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Debt Securities of a series are issuable in whole or in part as
Bearer Securities, a meeting of Holders of Debt 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 Act provided by this Indenture to be made, given or taken by Holders of
Debt Securities of such series.
SECTION 1602. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1601, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt 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 no more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Debt Securities of such series for any purpose
specified in Section 1601, 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 Debt Securities
of such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or in
London for such meeting
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and may call such meeting for such purposes by giving notice thereof as provided
in subsection (a) of this Section.
SECTION 1603. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Debt Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt 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 Debt 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 1604. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series; PROVIDED, HOWEVER, that if any
action is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of not less than
66 2/3% in principal amount of the Outstanding Debt Securities of a series, the
Persons entitled to vote 66 2/3% in principal amount of the Outstanding Debt
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 Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairperson
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 chairperson
of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section
1602(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 Debt Securities of
such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of majority in principal amount of the Outstanding Debt Securities of that
series, PROVIDED HOWEVER, that, except as limited by the proviso to Section 902,
any resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than 66 2/3% in
principal amount of the Outstanding Debt Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid only by the affirmative vote of the Holders of 66 2/3% in
principal amount of the Outstanding Debt Securities of that series; and
PROVIDED, FURTHER, that, except as limited by the proviso to Section 902, any
resolution with respect
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to any request, demand, authorization, direction, notice, consent, waiver or
other Act which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Debt Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Debt Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1605. 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 Debt Securities of such series in regard to proof of the
holding of Debt 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 Debt 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, in the case of Bearer Securities, by having
the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Debt Securities as provided in Section 1602(b),
in which case the Company or the Holders of Debt Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Debt Securities of such series represented
at the meeting.
(c) At any meeting each Holder of a Debt Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of Debt
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 Debt Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Debt Security of such series or proxy.
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(d) Any meeting of Holders of Debt Securities of any series duly
called pursuant to Section 1602 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Debt Securities of such series represented at the meeting; and
the meeting may be held as so adjourned without further notice.
SECTION 1606. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Debt Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1601. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SEVENTEEN
DEFEASANCE
SECTION 1701. TERMINATION OF COMPANY'S OBLIGATIONS.
If this Section 1701 is specified, as contemplated by Section 301, to
be applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest when due on the
Debt Securities of such series and any coupons appertaining thereto and any
mandatory sinking fund, repayment or analogous payments thereon on the scheduled
due dates therefor at the Stated Maturity thereof, the Company's obligations
under any covenant determined pursuant to
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Section 301 to be subject to this Section shall terminate with respect to the
Debt Securities of the series for which such deposit was made; PROVIDED,
HOWEVER, that (i) no Event of Default with respect to the Debt Securities of
such series under Section 501(1) or Section 501(2) or event that with notice or
lapse of time or both would constitute such an Event of Default shall have
occurred and be continuing on such date, (ii) such deposit will not result in a
breach of, or constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is bound, and
(iii) such termination shall not relieve the Company of its obligations under
the Debt Securities of such series and this Indenture to pay when due the
principal of (and premium, if any) and interest and additional amounts on such
Debt Securities and any coupons appertaining thereto if such Debt Securities or
coupons are not paid (or payment is not provided for) when due from the money
and Eligible Instruments (and the proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under any covenant determined pursuant to Section 301 to be subject to this
Section that the Company deliver to the Trustee (i) an Opinion of Counsel to the
effect that: (a) Holders of Debt Securities of such series and any coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and termination and (b) such Holders
(and future Holders) will be subject to tax in the same amount, manner and
timing as if such deposit and termination has not occurred, (ii) an Officers'
Certificate to the effect that under the laws in effect on the date such money
and/or Eligible Instruments are deposited with the Trustee, the amount thereof
will be sufficient, after payment of all Federal, state and local taxes in
respect thereof payable by the Trustee, to pay principal (and premium, if any)
and interest when due on the Debt Securities of such series and any coupons
appertaining thereto; and (iii) an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the defeasance contemplated in this Section have been complied with.
It shall be an additional condition to the deposit of cash and/or
Eligible Instruments and the termination of the Company's obligations pursuant
to the provisions of this Section under any covenant determined pursuant to
Section 301 to be subject to this Section, with respect to the Debt Securities
of any series then listed on the New York Stock Exchange, that the Company
deliver an Opinion of Counsel that the Debt Securities of such series will not
be delisted from the New York Stock Exchange as a result of such deposit and
termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Debt Securities
of such series under any covenant determined pursuant to Section 301 to be
subject to this Section.
SECTION 1702. REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money or Eligible Instruments not required for the
payment of the principal
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of (and premium, if any) and interest on the Debt Securities of any series and
any related coupons for which money or Eligible Instruments have been deposited
pursuant to Section 1701 held by them at any time.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 1701. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1703. INDEMNITY FOR ELIGIBLE INSTRUMENTS.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the deposited Eligible
Instruments or the principal or interest received on such Eligible Instruments.
ARTICLE EIGHTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1801. DEBT SECURITIES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees that anything in this Indenture or
the Debt Securities of any series to the contrary notwithstanding, the
indebtedness evidenced by the Debt Securities of each series and any coupons
appurtenant thereto is subordinate and junior in right of payment to all Senior
Debt to the extent provided herein, and each Holder of Debt Securities of each
series and coupons appurtenant thereto, by such Holder's acceptance thereof,
likewise covenants and agrees to the subordination herein provided and shall be
bound by the provisions hereof. Senior Debt shall continue to be Senior Debt
and entitled to the benefits of these subordination provisions irrespective of
any amendment, modification or waiver of any term of the Senior Debt or
extension or renewal of the Senior Debt.
In the event that the Company shall default in the payment of any
principal of (or premium, if any) or interest on any Senior Debt when the same
become due and payable, whether at maturity or at a date fixed for prepayment or
by declaration of acceleration or otherwise, then, upon written notice of such
default to the Company by the Holders of Senior Debt or any trustee therefor,
unless and until such default shall have been cured or waived or shall have
ceased to exist, no direct or indirect payment (in cash, property, securities,
by set-off or otherwise) shall be made or agreed to be made on account of the
principal of (or premium, if any) or interest on any of the Debt Securities, or
in respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Debt Securities.
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In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Debt Securities or coupons appurtenant thereto on
account thereof. Any payment or distribution, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Debt Securities of any series or coupons
appurtenant thereto shall be paid or delivered directly to the holders of Senior
Debt in accordance with the priorities then existing among such holders until
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior Debt,
the Holders of the Debt Securities and coupons appurtenant thereto, together
with the holders of any obligations of the Company ranking on a parity with the
Debt Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest on the Debt Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Debt Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan or reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof such payment or distribution or security shall be received in trust for
the
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benefit of, and shall be paid over or delivered and transferred to, the holders
of the Senior Debt at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment of all Senior
Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in
full. In the event of the failure of the Trustee or any Holder to endorse or
assign any such payment, distribution or security, each holder of Senior Debt is
hereby irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Debt shall be prejudiced in
the right to enforce subordination of the indebtedness evidenced by the Debt
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the Holders of Debt
Securities of each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such Debt Securities and
coupons appurtenant thereto or prevent the Trustee or the Holder from exercising
all rights, powers and remedies otherwise permitted by applicable law or
hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Debt to receive cash, securities or other
property otherwise payable or deliverable to the Holders.
Senior Debt shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Debt then outstanding. Upon the payment in full of
all Senior Debt, the Holders of Debt Securities of each series and coupons
appurtenant thereto, if any, shall be subrogated to all rights of any holders of
Senior Debt to receive any further payments or distributions applicable to the
Senior Debt until the indebtedness evidenced by the Debt Securities of such
series and coupons appertaining thereto, if any, shall have been paid in full,
and such payments or distributions received by such Holders, by reason of such
subrogation, of cash, securities or other property which otherwise would be paid
or distributed to the holders of Senior Debt shall, as between the Company and
its creditors other than the holders of Senior Debt, on the one hand, and such
Holders, on the other hand, be deemed to be a payment by the Company on account
of Senior Debt, and not on account of the Debt Securities of such series.
The provisions of this Section 1801 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Debt Securities or ranking junior to the Debt Securities, shall
not be deemed to prevent such obligations from constituting, respectively,
obligations ranking on a parity with the Debt Securities or ranking junior to
the Debt Securities.
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SECTION 1802. TRUSTEE AND HOLDERS OF DEBT SECURITIES MAY RELY ON
CERTIFICATE OF LIQUIDATING AGENT; TRUSTEE MAY REQUIRE
FURTHER EVIDENCE AS TO OWNERSHIP OF SENIOR DEBT; TRUSTEE
NOT FIDUCIARY TO HOLDERS OF SENIOR DEBT.
Upon any payment or distribution of assets of the Company referred to
in this Article Eighteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Eighteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee or representative on behalf of such holder) as evidence that such Person
is a holder of such Senior Debt (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payments or distributions pursuant to this Article Eighteen,
the Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
as to the extent to which such Person is entitled to participate in such payment
or distribution, and as to other facts pertinent to the rights of such Person
under this Article Eighteen, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive payment. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Debt and shall not be liable to any
such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Debt Securities or to the Company or to any other Person cash,
property or securities to which any holders of Senior Debt shall be entitled by
virtue of this Article or otherwise.
SECTION 1803. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article Eighteen or elsewhere in this
Indenture, or in any of the Debt Securities, shall prevent (a) the Company at
any time, except during the pendency of any dissolution, winding up, liquidation
or reorganization proceedings referred to in, or under the conditions described
in, Section 1801, from making payments of the principal of (or premium, if any)
or interest on the Debt Securities or (b) the application by the Trustee or any
Paying Agent of any moneys deposited with it hereunder to payments of the
principal of or interest on the Debt Securities, if, at the time of such
deposit, the Trustee or such Paying Agent, as the case may be, did not have the
written notice provided for in Section 1804 of any event prohibiting the making
of such deposit, or if, at the time of such deposit (whether or not in trust) by
the Company with the Trustee or any Paying Agent (other than the Company) such
payment would not have been prohibited by the provisions of this Article, and
the Trustee or any Paying Agent shall not be affected by any notice to the
contrary received by it on or after such date.
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SECTION 1804. TRUSTEE NOT CHARGED WITH KNOWLEDGE OF PROHIBITION.
Anything in this Article Eighteen or elsewhere in this Indenture
contained to the contrary notwithstanding, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of money to or by the Trustee and shall be entitled
conclusively to assume that no such facts exist and that no event specified in
Section 1801 has happened, until the Trustee shall have received an Officers'
Certificate to that effect or notice in writing to that effect signed by or on
behalf of the holder or holders, or their representatives, of Senior Debt who
shall have been certified by the Company or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or holders or
representatives or from any trustee under any indenture pursuant to which such
Senior Debt shall be outstanding; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (and premium, if any) or interest on any Debt Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to such date. The Company shall give prompt written notice to the Trustee
and to the Paying Agent of any facts which would prohibit the payment of money
to or by the Trustee or any Paying Agent.
SECTION 1805. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Debt Securities or coupons by such Holder's acceptance
thereof authorizes and directs the Trustee in such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
between such Holder and holders of Senior Debt as provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 1806. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Debt which may at the time be held by it, to
the same extent as any other holder of Senior Debt; PROVIDED that nothing in
this Article shall deprive the Trustee of any rights as such holder and PROVIDED
FURTHER that nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
SECTION 1807. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying
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Agent were named in this Article in addition to or in place of the Trustee,
PROVIDED, HOWEVER, that Sections 1804 and 1806 shall not apply to the Company or
any Affiliate of the Company if the Company or such Affiliate acts as Paying
Agent.
SECTION 1808. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF THE COMPANY OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Debt may, at any time or from
time to time and in their absolute discretion, change the manner, place or terms
of payment, change or extend the time of payment of, or renew or alter, any such
Senior Debt, or amend or supplement any instrument pursuant to which any such
Senior Debt is issued or by which it may be secured, or release any security
therefor, or exercise or refrain from exercising any other of their rights under
the Senior Debt including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Debt Securities or the
Trustee and without affecting the obligations of the Company, the Trustee or the
Holders of the Debt Securities under this Article.
ARTICLE NINETEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 1901. APPLICABILITY OF ARTICLE.
If an Officers' Certificate or supplemental indenture pursuant to
Section 301 provides that the Debt Securities of a series shall be Convertible
Securities, Debt Securities of such series shall be convertible in accordance
with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
SECTION 1902. RIGHT TO CONVERT.
Subject to and upon compliance with the provisions of this Article,
the Holder of any Convertible Security shall have the right, at such Holder's
option, at any time prior to the close of business on the date set forth in the
Officers' Certificate delivered pursuant to Section 301 hereof (or if such
Convertible Security is called for redemption or submitted for repayment, then
in respect of such Convertible Security to and including but not after the close
of business on the Redemption or Repayment Date, as the case may be, unless the
Company shall default in the payment due) to convert the principal amount of any
such Convertible Security, or, in the case of any Convertible Security of a
denomination greater than $1,000, any portion of such principal which is $1,000
or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock (as such shares shall then be constituted)
obtained by dividing the principal amount of the
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Convertible Security or portion thereof surrendered for conversion by the
Conversion Price, by surrender of the Convertible Security so to be converted in
whole or in part in the manner provided in Section 1903. Such conversion shall
be effected by the Company.
SECTION 1903. EXERCISE OF CONVERSION PRIVILEGE; DELIVERY OF COMMON
STOCK ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR
DIVIDENDS.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted in whole or in part shall surrender such
Convertible Security at an office or agency maintained by the Company pursuant
to Section 1002, accompanied by the funds, if any, required by the last
paragraph of this Section, together with written notice of conversion, in the
form provided on the Convertible Securities, that the Holder elects to convert
such Convertible Security or the portion thereof specified in said notice. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be
deliverable on such conversion shall be registered, and shall be accompanied by
transfer taxes, if required pursuant to Section 1908. Each Convertible Security
surrendered for conversion shall, unless the shares deliverable on conversion
are to be registered in the same name as the registration of such Convertible
Security, be duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or such Holder's duly
authorized attorney.
As promptly as practicable after the surrender of such Convertible
Security and the receipt of such notice and funds, if any, as aforesaid, the
Company shall deliver at such office or agency to such Holder, or on such
Holder's written order, a certificate or certificates for the number of full
shares deliverable upon the conversion of such Convertible Security or portion
thereof in accordance with the provisions of this Article and a check or cash in
respect of any fractional interest in respect of a share of Common Stock arising
upon such conversion as provided in Section 1904. In case any Convertible
Security of a denomination greater than $1,000 shall be surrendered for partial
conversion and subject to Section 302, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the
Convertible Security so surrendered, without charge to such Holder, a new
Convertible Security or Convertible Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Convertible Security.
Each conversion shall be deemed to have been effected on the date on
which such Convertible Security shall have been surrendered (accompanied by the
funds, if any, required by the last paragraph of this Section) and such notice
shall have been received by the Company, as aforesaid, and the person in whose
name any certificate or certificates for shares of Common Stock shall be
registrable upon such conversion shall be deemed to have become on said date the
holder of record of the shares represented thereby; PROVIDED HOWEVER, that any
such surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person in whose name the certificates are to be
registered as the record holder thereof for all purposes on the next succeeding
day on which stock transfer books are open, but such conversion shall be at the
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Conversion Price in effect on the date upon which such Convertible Security
shall have been surrendered.
Any Convertible Security or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record Date for any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (unless such Convertible Security or portion thereof being converted shall
have been called for redemption or submitted for repayment on a date in such
period) be accompanied by payment, in legal tender or other funds acceptable to
the Company, of an amount equal to the interest otherwise payable on such
Interest Payment Date on the principal amount being converted; PROVIDED,
HOWEVER, that no such payment need be made if there shall exist at the time of
conversion a default in the payment of interest on the Convertible Securities.
An amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Convertible Security on such Regular Record
Date, PROVIDED, HOWEVER, that if the Company shall default in the payment of
interest on such Interest Payment Date, such amount shall be paid to the person
who made such required payment. Except as provided above in this Section, no
adjustment shall be made for interest accrued on any Convertible Security
converted or for dividends on any shares issued upon the conversion of such
Convertible Security as provided in this Article.
SECTION 1904. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES.
No fractional shares of Common Stock or scrip representing fractional
shares shall be delivered upon conversion of Convertible Securities. If more
than one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be deliverable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Convertible Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
deliverable upon the conversion of any Convertible Security or Convertible
Securities, the Company shall make an adjustment therefor in cash at the current
market value of such fractional share of stock. The market value of a share of
Common Stock shall be the Closing Price on the Business Day immediately
preceding the day on which the Convertible Securities (or specified portions
thereof) are deemed to have been converted.
SECTION 1905. CONVERSION PRICE.
The Conversion Price shall be as specified in the form of Convertible
Security hereinabove set forth, subject to adjustment as provided in this
Article.
SECTION 1906. ADJUSTMENT TO CONVERSION PRICE.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Common Stock in shares of its capital stock (whether
shares of Common Stock or of capital
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stock of any other class), (ii) subdivide or reclassify its outstanding
Common Stock into a greater number of securities (including Common Stock),
or (iii) combine or reclassify its outstanding Common Stock into a smaller
number of securities (including Common Stock), the Conversion Price in
effect immediately prior thereto shall be adjusted so that the Holder of
any Convertible Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of capital stock of the Company
which such Holder would have owned or have been entitled to receive after
the happening of any of the events described above had such Convertible
Security been converted immediately prior to the happening of such event.
An adjustment made pursuant to this subsection (a) shall become effective
immediately after the record date in the case of a dividend and shall
become effective immediately after the effective date in the case of a
subdivision or combination. If, as a result of an adjustment made pursuant
to this subsection (a), the Holder of any Convertible Security thereafter
surrendered for conversion shall become entitled to receive shares of two
or more classes of capital stock of the Company, the Board of Directors of
the Company (whose determination shall be conclusive and shall be described
in a written statement filed with the Trustee and any conversion agent)
shall determine the allocation of the adjusted Conversion Price between or
among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment made
pursuant to this subsection (a) of this Section 1906, the Holder of any
Convertible Security thereafter converted shall become entitled to receive
any shares or other securities of the Company other than shares of Common
Stock, thereafter the number of such other shares so received upon
conversion of any Convertible Security shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the shares of Common Stock contained in
this Section 1906, and other provisions of this Article Nineteen with
respect to the shares of Common Stock shall apply on like terms to any such
other shares or other securities.
(b) In case the Company shall fix a record date for the issuance of
rights or warrants to all holders of its Common Stock (or securities
convertible into Common Stock) entitling them (for a period expiring within
45 days after such record date) to subscribe for or purchase Common Stock
at a price per share (or a conversion price per share) less than the
current market price per share of Common Stock (as defined in
subsection (d) below) at such record date, the Conversion Price in effect
immediately prior thereto shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect
immediately prior to such record date by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding on such record
date plus the number of shares which the aggregate offering price of the
total number of shares so offered (or the aggregate initial conversion
price of the convertible securities so offered) would purchase at such
current market price, and of which the denominator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
additional shares of Common Stock offered for subscription or purchase (or
into which the convertible securities so offered are initially
convertible). Such adjustment shall be made successively whenever such a
record date is fixed, and shall become effective immediately after such
record date.
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In determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such current
market price, and in determining the aggregate offering price of such
shares, there shall be taken into account any consideration received by the
Company for such rights or warrants, the value of such consideration, if
other than cash, to be determined by the Board of Directors of the Company.
Common Stock owned by or held for the account of the Company or any
majority owned subsidiary shall not be deemed outstanding for the purpose
of any adjustment required under this subsection (b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock evidences of its
indebtedness or assets (excluding regular quarterly or other periodic or
recurring cash dividends or distributions and cash dividends or
distributions paid from retained earnings of the Company or dividends or
distributions referred to in subsection (a) above) or rights or warrants to
subscribe or purchase Common Stock (excluding those referred to in
subsection (b) above), then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to such record date by a
fraction of which the numerator shall be the current market price per share
(as defined in subsection (d) below) of the Common Stock on such record
date less the then fair market value (as determined by the Board of
Directors of the Company whose determination shall be conclusive, and
described in a certificate filed with the Trustee) of the portion of the
assets or evidences of indebtedness so distributed or of such rights or
warrants applicable to one share of Common Stock, and the denominator shall
be the current market price per share (as defined in subsection (d) below)
of the Common Stock. Such adjustment shall be made successively whenever
such a record date is fixed and shall become effective immediately after
such record date. Notwithstanding the foregoing, in the event that the
Company shall distribute any rights or warrants to acquire capital stock
("Rights") pursuant to this subsection (c), the distribution of separate
certificates representing such Rights subsequent to their initial
distribution (whether or not such distribution shall have occurred prior to
the date of the issuance of such Convertible Securities) shall be deemed to
be the distribution of such Rights for purposes of this subsection (c);
provided that the Company may, in lieu of making any adjustment pursuant to
this subsection (c) upon a distribution of separate certificates
representing such Rights, make proper provision so that each Holder of such
Convertible Security who converts such Convertible Security (or any portion
thereof) (i) before the record date for such distribution of separate
certificates shall be entitled to receive upon such conversion shares of
Common Stock issued with Rights and (ii) after such record date and prior
to the expiration, redemption or termination of such Rights shall be
entitled to receive upon such conversion, in addition to the shares of
Common Stock issuable upon such conversion, the same number of such Rights
as would a holder of the number of shares of Common Stock that such
Convertible Security so converted would have entitled the holder thereof to
purchase in accordance with the terms and provisions of and applicable to
the Rights if such Convertible Security were converted immediately prior to
the record date for such distribution. Common Stock owned by or held for
the account
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of the Company or any majority owned subsidiary shall not be deemed
outstanding for the purpose of any adjustment required under this
subsection (c).
(d) For the purpose of any computation under subsection (b) and (c)
above, the current market price per share of Common Stock at any date shall
be deemed to be the average of the daily Closing Prices for the thirty
consecutive days (which are not legal holidays as defined in Section 113)
commencing forty-five days (which are not legal holidays as defined in
Section 113) before the day in question. The Closing Price for any day
shall be (i) if the Common Stock is listed or admitted for trading on any
national securities exchange, the last sale price (regular way), or the
average of the closing bid and ask prices if no sale occurred, of Common
Stock on the principal securities exchange on which the Common Stock is
listed, or, if not listed or admitted to trading on any national securities
exchange, on the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ"), (ii) if
not listed or quoted as described in (i), the mean between the closing high
bid and low asked quotations of Common Stock reported by NASDAQ, or any
similar system or automated dissemination of quotations of securities
prices then in common use, if so quoted, or (iii) if not quoted as
described in clause (ii), the mean between the high bid and low asked
quotations for Common Stock as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted both bid and
asked quotations for Common Stock on at least 5 of the 10 preceding days.
If none of the conditions set forth above is met, the Closing Price of
Common Stock on any day or the average of such Closing Prices for any
period shall be the fair market value of Common Stock as determined by a
member firm of the New York Stock Exchange, Inc. selected by the Company.
(e)(i) Nothing contained herein shall be construed to require an
adjustment in the Conversion Price as a result of the issuance of Common
Stock pursuant to, or the granting or exercise of any rights under, the
Norwest Corporation Dividend Reinvestment and Optional Cash Payment Plan.
(ii) In addition, no adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such price; PROVIDED, HOWEVER, that any adjustments which by
reason of this subsection (e)(ii) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment,
FURTHER PROVIDED, however, that any adjustments which by reason of this
subsection (e)(ii) are not otherwise required to be made shall be made no
later than 3 years after the date on which occurs an event that requires an
adjustment to be made or carried forward.
(iii) All calculations under this Article Nineteen shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case
may be. Anything in this Section 1906 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Conversion Price,
in addition to those required by this Section 1906, as it in its discretion
shall determine to be advisable in order that any stock dividends,
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subdivision of shares, distribution of rights to purchase stock or
securities, or distribution of securities convertible into or exchangeable
for stock hereafter made by the Company to its shareholders shall not be
taxable.
(f) Whenever the Conversion Price is adjusted, as herein provided,
the Company shall promptly file with the Trustee and any conversion agent
other than the Trustee an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement
of the facts requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the date
on which such adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion Price to the Holder of each Convertible
Security at such Holder's last address appearing on the Security Register
provided for in Section 305 of this Indenture.
(g) In any case in which this Section 1906 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (i)
delivering to the Holder of any Convertible Security converted after such
record date and before the occurrence of such event the additional shares
of Common Stock deliverable upon such conversion by reason of the
adjustment required by such event over and above the Common Stock
deliverable upon such conversion before giving effect to such adjustment
and (ii) paying to such Holder any amount in cash in lieu of any fraction
pursuant to Section 1904, PROVIDED, HOWEVER, that the Company shall deliver
to such Holder a due bill or other appropriate instrument evidencing such
Holder's rights to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment. If such event does not
occur, no adjustments shall be made pursuant to this Section 1906.
SECTION 1907. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE.
If any of the following events occur, namely (i) any reclassification
or change of outstanding shares of Common Stock deliverable upon conversion of
the Convertible Securities (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination, but including any change in the shares of Common
Stock into two or more classes or series of securities), (ii) any consolidation
or merger to which the Company is a party (other than a consolidation or merger
in which the Company is the continuing corporation and which does not result in
any reclassification of, or change (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination) in, outstanding shares of its Common Stock) or
(iii) any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation; then the Company, or
such successor or purchasing corporation, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall conform to the Trust Indenture
Act as in force at the date of execution of such supplemental indenture and
comply with the provisions of Article Nine) providing that each Convertible
Security shall be convertible into the kind and amount of shares of stock and
other securities or property, including cash, receivable upon
103
<PAGE>
such reclassification, change, consolidation, merger, sale or conveyance by a
holder of a number of shares of Common Stock deliverable upon conversion of
such Convertible Securities immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The Company shall
cause notice of the execution of such supplemental indenture to be mailed to
each holder of Convertible Securities, at his address appearing on the Security
Register provided for in Section 305 of this Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, consolidations, mergers and sales.
SECTION 1908. TAXES ON SHARES ISSUED.
The delivery of stock certificates on conversions of Convertible
Securities shall be made without charge to the Holder converting a Convertible
Security for any tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the delivery of stock registered in any name other than of
the Holder of any Convertible Security converted, and the Company shall not be
required to deliver any such stock certificate unless and until the person or
persons requesting the delivery thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 1909. SHARES TO BE FULLY PAID; COMPLIANCE WITH GOVERNMENTAL
REQUIREMENTS; LISTING OF COMMON STOCK.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Convertible Securities will upon delivery be fully
paid and nonassessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Convertible Securities hereunder
require registration with or approval of any governmental authority under any
Federal or state law before such shares may be validly delivered upon
conversion, the Company will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be.
The Company further covenants that it will, if permitted by the rules
of the New York Stock Exchange, list and keep listed for so long as the Common
Stock shall be so listed on such exchange, upon official notice of issuance, all
Common Stock deliverable upon conversion of the Convertible Securities.
SECTION 1910. RESPONSIBILITY OF TRUSTEE.
Neither Trustee nor any authenticating agent nor any conversion agent
shall at any time be under any duty or responsibility to any Holder of
Convertible Securities to determine
104
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whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither the Trustee nor
any authenticating agent nor any conversion agent shall be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property, which may at any time be delivered upon
the conversion of any Convertible Security, and neither the Trustee nor any
authenticating agent nor any conversion agent makes any representation with
respect thereto. Subject to the provisions of Section 601, neither the Trustee
nor any authenticating agent nor any conversion agent shall be responsible for
any failure of the Company to deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of any
Convertible Security for the purpose of conversion or for any failure of the
Company to comply with any of the covenants of the Company contained in this
Article.
SECTION 1911. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of its current or
retained earnings); or
(b) the Company shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any share
of any class or any other rights or warrants; or
(c) of any reclassification or change of the Common Stock (other
than a subdivision or combination of its outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par
value to par value) or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Corporation is
required or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
the Company shall cause to be filed with the Trustee and the Company shall cause
to be mailed to each holder of Convertible Securities at his address appearing
on the Security Register, provided for in Section 305 of this Indenture, as
promptly as possible but in any event no less than fifteen days prior to the
applicable date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend, distribution, rights
or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock
105
<PAGE>
of record shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up or any adjustment in the Conversion Price
required by this Article Nineteen.
SECTION 1912. COVENANT TO RESERVE SHARES.
The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all outstanding Convertible Securities.
106
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NORWEST CORPORATION
By __________________________________________
Its Executive Vice President and
Chief Financial Officer
[CORPORATE SEAL]
Attest:
______________________________
Secretary
CITIBANK, N.A.
By __________________________________________
[CORPORATE SEAL]
Attest:
______________________________
107
<PAGE>
STATE OF MINNESOTA )
)SS.
COUNTY OF HENNEPIN )
On the 3rd day of October, 1995, before me personally came John T.
Thornton, to me known, who, being duly sworn, did depose and say that he resides
at Sunfish Lake, Minnesota; that he is an Executive Vice President and the
Chief Financial Officer of Norwest Corporation, a corporation described in and
which executed the above instrument; that he knows the seal of said
corporation; that it was so affixed pursuant to the authority of the Board of
Directors of said corporation; and that he signed his name thereto pursuant to
like authority.
______________________________
Notary Public
108
<PAGE>
STATE OF NEW YORK )
)SS.
COUNTY OF NEW YORK )
On the 15th day of September, 1995, before me personally came
Florence Mills, to me known, who, being duly sworn, did depose and say that
she resides at 120 Wall Street, New York, New York 10043; that she is a Senior
Trust Officer of Citibank, N.A., a national banking association described in
and which executed the above instrument; that she knows the seal of said
corporation; that it was so affixed pursuant to the authority of the Board of
Directors of said corporation; and that she signed her name thereto pursuant
to like authority.
______________________________
Notary Public
109
<PAGE>
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
NORWEST CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of September 15, 1995
(the "Indenture") between Norwest Corporation and Citibank, N.A., as trustee
(the "Trustee"), covering the above-captioned Debt Securities. This is to
certify that as of the date hereof, principal amount of Debt Securities credited
to you for our account (i) is owned by persons that are not United States
Persons, as defined below; (ii) is owned by United States Persons that are
(a) foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) United States Persons who
acquired the Debt Securities through foreign branches of United States financial
institutions and who hold the Debt Securities through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution encloses herewith a certificate in the
form of Exhibit A-2 to the Indenture); or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
which United States or foreign financial institutions described in clause (iii)
above (whether or not also described in clause (i) or (ii)) certify that they
have not acquired the Debt Securities for purposes of resale directly or
indirectly to a United States Person or to a person within the United States or
its possessions.
[Insert if certificate does not relate to an interest payment--We undertake
to advise you by tested telex followed by written confirmation if the above
statement as to beneficial ownership is not correct on the date of delivery of
the above-captioned Debt Securities in bearer form as to all of such Debt
Securities with respect to such of said Debt Securities as then appear in your
books as being held for our account.] We understand that this certificate is
required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income.
A-1
<PAGE>
[This certificate excepts and does not relate to __________ principal
amount of Debt Securities credited to you for our account and to which we are
not now able to make the certification set forth above. We understand that
definitive Debt Securities cannot be delivered and interest cannot be paid until
we are able to so certify with respect to such principal amount of Debt
Securities.]*
Dated:
[To be dated on or after
______________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
_____________________________________________
(Authorized Signatory)
Name:________________________________________
Title:_______________________________________
___________________
*Delete if inappropriate
A-2
<PAGE>
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
NORWEST CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of September 15, 1995
(the "Indenture"), between Norwest Corporation and Citibank, N.A., as trustee,
relating to the offering of the above-captioned Debt Securities (the "Debt
Securities"). Unless herein defined, terms used herein have the same meaning as
given to them in the Indenture.
The undersigned represents that it is a branch located outside the United
States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulation Section 1.165-
12(c)(1)(v)) that holds customers' securities in the ordinary course of its
trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
Dated:__________________
[To be dated on or after
__________________ (the
date determined as provided
in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
_____________________________________________
(Authorized Signatory)
Name:________________________________________
Title:_______________________________________
<PAGE>
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
NORWEST CORPORATION
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion, ___________, of the Global Security representing
the above-captioned issue [which is herewith submitted to be exchanged for
definitive Debt Securities]* [for which we are seeking to obtain payment of
interest]* (the "Submitted Portion"). This is to certify, pursuant to the
Indenture dated as of September 15, 1995 (the "Indenture") between Norwest
Corporation and Citibank, N.A., as trustee (the "Trustee"), that we have
received in writing, by tested telex or by electronic transmission from member
organizations with respect to each of the persons appearing in our records as
being entitled to a beneficial interest in the Submitted Portion a Certificate
of Beneficial Ownership by a Non-United States Person or by Certain Other
Persons [and, in some cases, a Certificate of Status as a Foreign Branch of a
United States Financial Institution, authorizing us to inform the issuer or the
issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you deliver to the office of ________________ in
definitive Bearer Securities in the denominations on the attached Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated:______________
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear
System] [CEDEL S.A.]
By:__________________________________________
_______________
*Delete if inappropriate.
