FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12 (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
LEHMAN BROTHERS HOLDINGS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3216325
(State of incorporation (I.R.S. employer
or organization) identification no.)
3 World Financial Center
New York, New York 10285
(Address of principal executive offices) (zip code)
If this Form relates to the registration of a class of debt If this Form relates
to the registration of a class of debt securities and is effective upon filing
pursuant to securities and is to become effective simultaneously with General
Instruction A(c)(1) please check the following the effectiveness of a concurrent
registration statement box X under the Securities Act of 1933 pursuant to
General
Instruction A(c)(2) please check the following box.
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
8.30% Quarterly Income Capital
Securities, Series New York Stock Exchange, Inc.
A, Due December 31, 2035
Securities to be registered pursuant to Section 12(g) of the Act: None
Item 1. Description of Registrant's Securities to be Registered.
The securities to be registered are 8.30% Quarterly Income
Capital Securities, Series A, Due December 31, 2035 of Lehman Brothers Holdings
Inc. (the "Registrant") and shall be issued under the Registration Statement on
Form S-3 (File No. 33-56615). A description of the Securities is contained
in the Prospectus and Prospectus Supplement filed on February 12, 1996
by the Registrant with the Securities and Exchange Commission (the
"Commission") pursuant to Rule 424(b) under the Securities Act of 1933,
and such Prospectus and Prospectus Supplement shall be deemed to be
incorporated by reference into this Registration Statement.
Item 2. Exhibits.
1 Form of Registrant's 8.30% Quarterly Income Capital Securities Series A,
Due December 31, 2035
2. Form of Indenture, dated as of February 1, 1996, between the Registrant and
Chemical Bank, as trustee.
3. Form of First Supplemental Indenture dated as of February 1, 1996, between
the Registrant and Chemical Bank, as trustee.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
LEHMAN BROTHERS HOLDINGS INC.
(Registrant)
Date: February 13, 1996 By: /s/ Jennifer Marre
------------------
Name: Jennifer Marre
Title: Vice President
<PAGE>
Exhibit 1.
<PAGE>
LEHMAN BROTHERS HOLDINGS INC.
8.30% QUARTERLY INCOME CAPITAL SECURITIES
(SERIES A SUBORDINATED INTEREST DEFERRABLE DEBENTURE, DUE 2035)
No. R- $__________________
Cusip 524908 30 8
See Reverse for Certain Definitions
LEHMAN BROTHERS HOLDINGS INC., a corporation duly organized
and existing under the laws of the State of Delaware (herein referred to as the
"Company"), for value received, hereby promises to pay to ___________________,
at the office or agency of the Company in the Borough of Manhattan, the City of
New York, the principal sum of ______________________ on December 31, 2035, in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this Debenture until
the principal hereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum during
the period in which such principal is overdue, compounded quarterly, to the
registered holder of this Debenture, until payment of said principal sum has
been made or duly provided for. Interest on this Debenture, (computed as set
forth herein) shall be payable quarterly (subject to deferral as set forth
herein) in arrears on March 31, June 30, September 30 and December 31 of each
year (each an "Interest Payment Date"), commencing March 31, 1996, from the
Interest Payment Date next preceding the date of this Debenture to which
interest has been paid or duly provided for, unless the date hereof is a date to
which interest has been paid or duly provided for, in which case from the date
of this Debenture, or, if no interest has been paid or duly provided for on this
Debenture, from February 15, 1996.
The interest so payable on any Interest Payment Date will,
subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Debenture (or one or
more Predecessor Securities, as defined in said Indenture) is registered at the
close of business on the fifteenth day of the calendar month (each, a "Record
Date") in which such Interest Payment Date occurs. Interest may, at the option
of the Company, be paid by check mailed to the person entitled thereto at such
person's address as it appears in the registry books of the Company.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS DEBENTURE
SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, LEHMAN BROTHERS HOLDINGS INC. has caused
this instrument to be signed by its Chairman of the Board, its Vice Chairman,
its President, its Chief Financial Officer, one of its Vice Presidents or its
Treasurer by manual or facsimile signature under its corporate seal, attested by
its Secretary or one of its Assistant Secretaries by manual or facsimile
signature.
Dated: LEHMAN BROTHERS HOLDINGS INC.
By:
Title:
[SEAL]
Attest:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
CHEMICAL BANK
as Trustee
By:
Authorized Signature
[Reverse Side of Debenture]
This Debenture is one of a duly authorized series of
Debentures of the Company designated as the 8.30% Quarterly Income Capital
Securities (Series A Subordinated Interest Deferrable Debentures, Due 2035 ) of
the Company (herein called the "Debentures"), limited (except as otherwise
provided in the Indenture referred to below) in aggregate principal amount to $
200,000,000. The Debentures are one of an indefinite number of series of debt
securities of the Company (herein collectively called the "Securities"), issued
or issuable under and pursuant to an indenture, dated as of February 1, 1996, as
amended and supplemented (herein called the "Indenture"), duly executed and
delivered by the Company and Chemical Bank, Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures. The separate series of Securities 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 or repayment or repurchase rights (if any), may be subject to
different sinking, purchase or analogous funds (if any), may be subject to
different covenants and Events of Default, as defined in the Indenture, and may
otherwise vary as provided in the Indenture.
Payment of the principal of and interest on this Debenture is,
to the extent provided in the Indenture, subordinated and subject in right of
payment to the prior payment in full when due of the principal of (and premium,
if any) and interest, if any, on all Senior Debt, as defined in the Indenture,
of the Company and this Debenture is issued subject to the provisions of the
Indenture with respect thereto. Each registered holder of this Debenture, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and expressly directs the Trustee on his or her behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee as his or her attorney-in-fact for any and
all such purposes. Each registered holder hereof, by his or her acceptance
hereof, hereby waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior Debt,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
Subject to Article Eleven of the Indenture, at any time on or
after March 31, 2001, and prior to maturity, the Company shall have the
right to redeem this Debenture at the option of the Company, in whole or in
part, at a redemption price equal to 100% of the principal amount redeemed plus
accrued and unpaid interest thereon to the date fixed for redemption. Any
redemption pursuant to this paragraph shall be made upon not less than 30 nor
more than 60 days' notice to the Trustee and Holders of the Debentures. If less
than all the Debentures are to be redeemed by the Company, the Debentures to be
redeemed will be selected by lot or by such other method as the Trustee shall
deem fair and appropriate. The Debentures are not subject to a sinking fund.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the registered holder hereof upon the surrender hereof at
a Place of Payment (as defined in the Indenture).
In case an Event of Default (as defined in the Indenture) with
respect to the Debentures 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 omission by the Company to pay interest during a Deferral Period
(as defined below) as permitted hereby shall not constitute an Event of Default
under Section 501 of the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than 66-2/3% in
aggregate principal amount of each series of the Securities at the time
Outstanding to be affected (each series voting as a class), evidenced as
provided in the Indenture, to execute supplemental indentures adding any
provisions to, or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Securities of all such series; provided, however,
that no such supplemental indenture shall, among other things, (i) change the
fixed maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon or reduce any
premium payable on redemption, or make the principal thereof, or premium, if
any, or interest thereon payable in any coin or currency other than that
hereinabove provided, or amend the Indenture to modify its provisions relating
to the subordination of each Security in a manner adverse to the holder thereof,
without the consent of the holder of each Security so affected, or (ii) change
the place of payment on any Security, or impair the right to institute suit for
payment on any Security, or reduce the aforesaid percentage of Securities, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Security so affected. It is also
provided in the Indenture that, prior to any declaration accelerating the
maturity of any series of Securities, the holders of a majority in aggregate
principal amount of the Securities of such series Outstanding may on behalf of
the holders of all the Securities of such series waive any past default or Event
of Default under the Indenture with respect to such series and its consequences,
except a default in the payment of interest, if any, on or the principal of, or
premium, if any, on any of the Securities of such series, or in the payment of
any sinking fund installment or analogous obligation with respect to Securities
of such series. Any such consent or waiver by the holder of this Debenture shall
be conclusive and binding upon such holder and upon all future holders and
owners of this Debenture and any Debentures which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no provisions of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of this
Debenture at the place, at the time and in the coin or currency herein
prescribed.
The amount of interest payable for any period will be computed
on the basis of twelve 30-day months and a 360-day year and, for any period
shorter than a full quarterly interest period, on the basis of the actual number
of days elapsed in such period divided by 360 days. In the event that any date
on which interest is payable on this Debenture is not a Business Day (as defined
in the Indenture), then payment of the amount payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the original Interest Payment Date, subject to certain rights of
deferral described below.
The Company shall have the right at any time, on one or more occasions,
so long as an Event of Default has not occurred and is not continuing under the
Indenture, to extend any interest payment period on this Debenture for a period
(a "Deferral Period") not to exceed 20 consecutive quarterly interest payment
periods; provided that the date on which such Deferral Period ends must be on an
Interest Payment Date and must be no later than _____________ __, 2035 or any
date on which any Debentures are fixed for redemption, and, as a consequence,
the quarterly interest payment on the Debentures would be deferred (but would
continue to accrue with interest thereon compounded quarterly at the rate of
interest on the Debentures, except to the extent payment of such interest is
prohibited by law) during any such Deferral Period (as defined in the
Indenture). On the Interest Payment Date at the end of each Deferral Period, the
Company shall pay all interest then accrued and unpaid (compounded quarterly, at
the rate of interest on the Debentures, except to the extent payment of such
interest is prohibited by law) to the date of payment, to the persons in whose
name the Debentures are registered on the Record Date immediately preceding the
Interest Payment Date at the end of such Deferral Period. The Company shall give
the Trustee and the registered holders of Debentures (with the Trustee to be
notified at least three days prior to notice to such holders) written notice of
its election to defer interest payments or to extend the Deferral Period prior
to the earlier of (i) the next scheduled quarterly Interest Payment Date or (ii)
the date the Company is required to give notice of the record date of such
related interest payment to the New York Stock Exchange or other applicable
self-regulatory organization or to the registered holders of the Debentures, but
in any event not less than two Business Days prior to such Record Date. During
the Deferral Period, the Company shall not declare or pay any dividend on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its Capital Stock or make any guarantee payments with respect to the foregoing,
other than redemptions of any series of Capital Stock of the Company pursuant to
the terms of any sinking fund provisions with respect thereto. As used herein,
"Capital Stock" means all series of preferred stock, common stock and any other
equity securities of the Company. During any Deferral Period, the Company may
continue to extend the interest payment period by extending the Deferral Period,
on one or more occasions by giving notice as aforesaid; provided that such
Deferral Period, as extended, must end on an Interest Payment Date and in no
event shall the aggregate Deferral Period, as extended, exceed 20 consecutive
quarterly interest payment periods or extend beyond ____________ __, 2035 or any
date on which any of the Debentures are fixed for redemption. No interest shall
be due and payable on the Debentures during a Deferral Period except at the end
thereof.
Notwithstanding the provisions of Section 401(a)(B) of the
Indenture, the Company may satisfy and discharge the entire indebtedness on all
the Debentures as provided therein only when the Debentures are by their terms
due and payable within one year.
The Debentures are issuable in registered form without coupons
in denominations of $25 and any multiple of $25. At the option of the holders
thereof, either at the office or agency to be designated and maintained by the
Company for such purpose in the Borough of Manhattan, The City of New York,
pursuant to the provisions of the Indenture or at any of such other offices or
agencies as may be designated and maintained by the Company for such purpose
pursuant to the provisions of the Indenture, and in the manner and subject to
the limitations provided in the Indenture, but without the payment of any
service charge, except for any tax or other governmental charges imposed in
connection therewith, Debentures may be exchanged for an equal aggregate
principal amount of Debentures of like tenor and of other authorized
denominations.
The Company, the Trustee, and any agent of the Company or of
the Trustee may deem and treat the registered holder hereof as the absolute
owner of this Debenture (whether or not this Debenture shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment hereof, or on account hereof, and for all other
purposes, and neither the Company nor the Trustee nor any agent of the Company
or of the Trustee shall be affected by any notice to the contrary. All such
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 Debenture.
No recourse for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or any indenture supplemental thereto
or in any Debenture, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Debenture is registrable in
the Security Register, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company in any place where the principal
of this Debenture is payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Debentures of this series
of like tenor and of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
The Indenture and the Debentures shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
<PAGE>
--------------------------------
The following abbreviations, when used in the inscription on
the face of the within Debenture, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________ Custodian ________
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors
JT TEN - as joint tenants with right of Act _________________________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the above list.
--------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
(Name and Address of Assignee, including zip code, must be printed or
typewritten.)
______________________________________________________________________________
the within Debenture, and all rights thereunder, hereby irrevocably constituting
and appointing
_______________________________________________________________________________
to transfer the said Debenture 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 it appears upon the face of the within Debenture in every particular, without
alteration or enlargement or any change whatever.
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED MEDALLION SIGNATURE GUARANTEE PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
<PAGE>
Exhibit 2
<PAGE>
THIS INDENTURE, dated as of February 1, 1996, is between LEHMAN
BROTHERS HOLDINGS INC., a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), and CHEMICAL BANK, a banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
notes or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as in this Indenture provided, up to such principal amount or
amounts as may from time to time be authorized in or pursuant to one or more
resolutions of the Board of Directors; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement of the Company according to its terms have been done and performed,
and the execution and delivery of this Indenture have in all respects been duly
authorized,
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities and any related coupons are, and are to be, authenticated, issued and
delivered, and in consideration of the premises, of the purchase and acceptance
of the Securities by the Holders thereof and of the sum of one dollar duly paid
to it by the Trustee at the execution and delivery of these presents, the
receipt whereof is hereby acknowledged, the Company covenants and agrees with
the Trustee for the equal and proportionate benefit of the respective Holders
from time to time of the Securities or of any series thereof and any related
coupons, as follows:
PARAGRAPH A. Incorporation by Reference.
Articles One through Thirteen of the Shearson Lehman Brothers Holdings
Inc. Standard Multiple-Series Indenture Provisions dated and filed with the
Securities and Exchange Commission (the "Commission") on July 30, 1987 and as
amended and refiled with the Commission on November 16, 1987 (the "Standard
Provisions") are hereby incorporated herein by reference with the same force and
effect as though fully set out herein.
PARAGRAPH B. Additional Provisions.
The following Article Fourteen and each of the following provisions,
which constitute part of this Indenture, are numbered to conform with the format
of the Standard Provisions:
SECTION 101.
"Senior Debt" has the meaning specified in Section 1401.
SECTION 116. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the Holders and the holders of Senior Debt, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 401.
(c) The Company may make the deposit provided for in Section
401(a)(1)(B) hereof only if permitted by Article Fourteen.
SECTION 402.
(d) Funds and obligations held in trust pursuant to this Section 402
are not subject to the provisions of Sections 1401, 1402, 1404 and 1407.
SECTION 615. Other Matters Concerning Trustee.
The Corporate Trust Office of the Trustee at the date of this Indenture
is located at 450 West 33rd Street, New York, New York 10041 except that, with
respect to the presentation of notices and other filings under this Indenture,
the Corporate Trust Office shall mean the Corporate Trustee Administration
Department of the Trustee located at 55 Water Street, Room 1820, New York, New
York 10041.
A Responsible Officer means any officer of the Trustee with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
SECTION 705. Delivery of Reports by Trustee.
The reports to be transmitted by the Trustee pursuant to the provisions
of Section 703 hereof shall be required to be transmitted on or before May 15,
1996 and on or before May 15 in every year thereafter, so long as any Securities
are outstanding hereunder.
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Securities Subordinated to Senior Debt.
The Company agrees, and each Holder of the Securities and related
coupons by his acceptance thereof likewise agrees, that the payment of the
principal of (and premium, if any) and interest, if any, on the Securities and
related coupons is subordinated, to the extent and in the manner provided in
this Article, to the prior payment in full when due of the principal of (and
premium, if any) and interest, if any, on all Senior Debt.
For purposes of this Article, "Senior Debt" means all obligations
(whether now outstanding or hereafter created, assumed or incurred) for the
payment of which the Company is responsible or liable as obligor, guarantor or
otherwise in respect of all principal of (and premium, if any) and interest if
any (including any interest, if any, accruing subsequent to the commencement of
a proceeding in bankruptcy by or against the Company) on (i) any indebtedness
for money borrowed or evidenced by bonds, notes, debentures or similar
instruments, (ii) indebtedness under capitalized leases, (iii) any indebtedness
representing the deferred and unpaid purchase price of any property or business,
and (iv) all deferrals, renewals, extensions and refundings of any such
indebtedness or obligation; provided, that the following shall not constitute
Senior Debt: (a) indebtedness evidenced by the Securities and related coupons,
(b) indebtedness which is expressly made equal in right of payment with the
Securities or subordinate and subject in right of payment to the Securities, (c)
indebtedness for goods or materials purchased in the ordinary course of business
or for services obtained in the ordinary course of business or indebtedness
consisting of trade payables, or (d) indebtedness which is subordinated to any
obligation of the type specified in clauses (i) through (iv) above.
This Article shall constitute a continuing offer to all persons who, in
reliance upon such provisions, become holders of, or continue to hold, Senior
Debt, and such provisions are made for the benefit of the holders of Senior Debt
and such holders and/or each of them may enforce such provisions.
SECTION 1402. Company Not to Make Payments with Respect to Securities in
Certain Circumstances.
(a) Upon the failure to pay the principal of (and premium, if any) and
interest, if any, on Senior Debt when due or upon the maturity of any Senior
Debt by lapse of time, acceleration or otherwise, all principal of (and premium,
if any) and interest, if any, and other amounts due in connection therewith
shall first be paid in full, or such payment duly provided for in cash or in a
manner satisfactory to the holders of such Senior Debt, before any payment is
made on account of the principal of (and premium, if any) and interest, if any,
on the Securities or to acquire any of the Securities or on account of the
redemption, sinking fund or analogous provisions in this Indenture.
(b) In the event that, notwithstanding the foregoing provisions of this
Section 1402, any payment on account of principal of (and premium, if any) and
interest, if any, on the Securities, or on account of the redemption provisions,
shall be made by or on behalf of the Company and received by the Trustee, by any
Holder or by any Paying Agent (or, if the Company is acting as its own Paying
Agent, money for such payment shall be segregated and held in trust) at a time
when such payment was prohibited by the provisions of this Section 1402, then,
unless and until such payment is no longer prohibited by this Section 1402, such
payment (subject to the provisions of Sections 1406 and 1407) shall be held by
the Trustee, by any Holder or by any Paying Agent in trust for the benefit of,
and shall be paid over and delivered to, the holders of Senior Debt (pro rata as
to each of such holders on the basis of the respective amounts of Senior Debt
held by them) or their representative or the trustee under the indenture or
other agreement (if any) pursuant to which Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of all
Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in
full in accordance with its terms, after giving effect to any concurrent payment
or distribution or provision therefor to the holders of Senior Debt. The Company
shall give prompt written notice to the Trustee of any default under any Senior
Debt or under any agreement pursuant to which Senior Debt may have been issued.
Failure to give such notice shall not affect the subordination of the Securities
to Senior Debt as provided in this Article.
SECTION 1403. Securities Subordinated to Prior Payment of All Senior Debt
on Dissolution, Liquidation or Reorganization of Company.
Upon any distribution of assets of the Company pursuant to any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or otherwise):
(a) the holders of all Senior Debt shall first be entitled to
receive payment in full of the Senior Debt before the Holders of the
Securities and any related coupons are entitled to receive any payment
on account of the principal of (and premium, if any) and interest, if
any, on the Securities;
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities and any related coupons or the
Trustee on behalf of the Holders of the Securities and any related
coupons would be entitled except for the provisions of this Article,
shall be paid by the liquidating trustee or agent or other person
making such payment or distribution directly to the holders of Senior
Debt or their representative, or to the trustee under any indenture
under which Senior Debt may have been issued, to the extent necessary
to make payment in full of all Senior Debt remaining unpaid, after
giving effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Debt; and
(c) in the event that, notwithstanding the foregoing
provisions of the Section 1403, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or the Holders of the
Securities and any related coupons or any Paying Agent (or, if the
Company is acting as its own Paying Agent, money for any such payment
or distribution shall be segregated or held in trust) on account of
principal of (and premium, if any) and interest, if any, on the
Securities before all Senior Debt is paid in full, or effective
provision made for its payment, such payment or distribution (subject
to the provisions of Sections 1406 and 1407) shall be received and held
in trust for and shall be paid over to the holders of Senior Debt
remaining unpaid or unprovided for or their representative, or to the
trustee under any indenture under which Senior Debt may have been
issued, for application to the payment of such Senior Debt until all
such Senior Debt shall have been paid in full, after giving effect to
any concurrent payment or distribution or provision therefor to the
holders of such Senior Debt.
The consolidation of the Company with, or the merger of the Company
into, any other corporation or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to any Person upon the terms and conditions
provided in Article Eight shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section 1403 if such
other corporation or Person, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the conditions
stated in Article Eight. Nothing in this Section 1403 shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company. Upon any
payment or distribution of assets of the Company referred to in this Section
1403, the Trustee and the Holders of the Securities and any related coupons
shall be entitled to rely upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities and
any related coupons, 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.
SECTION 1404. Securityholders to be subrogated to Rights of Holders of
Senior Debt.
Subject to the payment in full of all Senior Debt, the Holders of the
Securities and any related coupons shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of assets of the
Company applicable to the Senior Debt until all amounts owing on the Securities
shall be paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of the Senior Debt by or on behalf of the Company
or by or on behalf of the Holders of the Securities and any related coupons by
virtue of this Article which otherwise would have been made to the Holders of
the Securities and any related coupons shall, as between the Company and the
Holders of the Securities and any related coupons, be deemed to be payment by
the Company to or on account of the Senior Debt, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities and any related
coupons, on the one hand, and the holders of the Senior Debt, on the other hand.
SECTION 1405. Obligation of Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in
any Security is intended to or shall impair, as between the Company and the
Holders of the Securities and any related coupons, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities and any related coupons the principal of (and premium, if any) and
interest, if any, on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect
(except to the extent specifically provided above in Section 1404) the relative
rights of the Holders of the Securities and any related coupons and creditors of
the Company other than the holders of the Senior Debt, nor shall anything herein
or therein prevent the Trustee or the Holder of any Security or any related
coupon from exercising all remedies otherwise permitted by applicable law upon
the occurrence of an Event of Default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Debt in respect of
cash, property or securities of the Company received upon the exercise of any
such remedy. Upon any distribution of assets of the Company referred to in this
Article, the Trustee and the Holders of the Securities and any related coupons
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders of the Securities and any related coupons, 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.
SECTION 1406. Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice.
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 to or by
the Trustee, unless and until a Responsible Officer shall have received written
notice thereof from the Company or from one or more holders of Senior Debt or
from any trustee therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Article Six, shall be entitled to
assume conclusively that no such facts exist. The Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Debt (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior Debt or a
trustee on behalf of any such holder or holders.
SECTION 1407. Application by Trustee of Monies Deposited with It.
Any deposit of monies by the Company with the Trustee or any Paying
Agent (whether or not in trust) for the payment of the principal of (and
premium, if any) and interest, if any, on any Securities other than pursuant to
Article Four shall be subject to the provisions of this Article except that, if
prior to the third Business Day prior to the date on which by the terms of this
Indenture any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of (and premium, if any) and interest,
if any, on any Security) the Trustee or, in the case of any such deposit of
monies with a Paying Agent, the Paying Agent shall not have received with
respect to such monies the notice provided for in Section 1406, then the Trustee
or such Paying Agent, as the case may be, shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date. 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 payment or distribution
pursuant to this Article, 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, the extent to which such person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such person under this Article, and if such evidence is not furnished
the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt but shall have only such obligations to such holders
as are expressly set forth in this Article.
SECTION 1408. Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt and
coupons to enforce subordination as provided herein 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 of this Indenture, regardless
of any knowledge thereof which any such holder may have or be otherwise charged
with.
SECTION 1409. Securityholders Authorize Trustee to Effectuate Subordination
of Securities.
Each Holder of the Securities and related coupons by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for such
purpose, including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or otherwise),
the immediate filing of a claim for the unpaid balance of its or his Securities
in the form required in said proceedings and the causing of said claim to be
approved. If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of time
to file such claims, then the holders of Senior Debt are hereby authorized to
have the right to file and are hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Securities and coupons.
SECTION 1410. Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Debt at any time held by it to the same extent
as any other holder of Senior Debt, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
SECTION 1411. Article Fourteen Not to Prevent Events of Default.
The failure to make a payment on account of principal of (and premium,
if any) and interest, if any, by reason of any provision in this Article shall
not be construed as preventing the occurrence of an Event of Default under
Section 501.
Chemical Bank hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, Lehman Brothers Holdings Inc. has caused this
Indenture to be signed and acknowledged by its President, its Chairman of the
Board, one of its Vice Presidents, its Chief Financial Officer or its Treasurer,
and its corporate seal to be affixed hereunto, and the same to be attested by
its Secretary, its Assistant Secretary or one of its Attesting Secretaries, and
Chemical Bank has caused this Indenture to be signed and acknowledged by one of
its Vice Presidents, and its corporate seal to be affixed hereunto, and the same
to be attested by one of its Assistant Secretaries, as of the day and year first
written above.
[CORPORATE SEAL] LEHMAN BROTHERS HOLDINGS INC.
Attest: By_______________________
________________________
Assistant Secretary
[CORPORATE SEAL] CHEMICAL BANK
Attest: By_______________________
________________________
Assistant Secretary
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the ________ day of _______, 198_, before me personally came
___________, to me known, who, being by me duly sworn, did depose and say that
he is ____________ of LEHMAN BROTHERS HOLDINGS INC., one of the corporations
described in and which executed the foregoing instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
____________________________
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ________ day of _______, 198_, before me personally came
___________, to me known, who, being by me duly sworn, did depose and say that
he is ____________ of CHEMICAL BANK, one of the corporations described in and
which executed the foregoing instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
_________________________
[Notarial Seal]
<PAGE>
LEHMAN BROTHERS HOLDINGS INC.
AND
CHEMICAL BANK
Trustee
INDENTURE
Dated as of
February 1, 1996
<PAGE>
Exhibit 3.
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of February 1,
1996, is between LEHMAN BROTHERS HOLDINGS INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), and CHEMICAL
BANK, a banking corporation duly organized and existing under the laws of the
State of New York, acting as Trustee under the Indenture referred to below (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the execution and
delivery of an Indenture dated as of February 1, 1996 (the "Indenture") to
provide for the issuance from time to time of its unsecured notes or other
evidences of indebtedness to be issued in one or more series (the "Securities"),
as in the Indenture provided, up to such principal amount or amounts as may from
time to time be authorized in or pursuant to one or more resolutions of the
Board of Directors;
WHEREAS, the Company has duly authorized the execution and
delivery of this First Supplemental Indenture in order to (i) provide for the
issuance of global Securities in either registered or bearer form or in either
temporary or global form and for the defeasance of certain obligations, (ii)
provide for the conformity of Indenture to the Trust Indenture Act of 1939, as
amended, (iii) provide for the issuance of, and clarify the treatment of Indexed
Securities and Dual Currency Securities (as each of such terms is defined
herein) and (iv) provide for the Euroclear and Cedel rules with respect to the
exchange of Bearer Securities in global form (as each of such terms is defined
herein);
WHEREAS, no Securities of any series have heretofore been
issued under the Indenture; and
WHEREAS, all acts and things necessary to make this First
Supplemental Indenture a valid agreement of the Company according to its terms
have been done and performed, and the execution and delivery of this First
Supplemental Indenture have in all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, of the
purchase and acceptance of the Securities by the Holders thereof and of the sum
of one dollar duly paid to it by the Trustee at the execution and delivery of
these presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee for the equal and proportionate benefit of
the respective Holders from time to time of the Securities or of any series
thereof and any related coupons, as follows:
SECTION I. AMENDMENTS TO THE INDENTURE
<PAGE>
1.1 Amendment to Section 101 of the Indenture. Section 101 of
the Indenture is hereby amended by (a) adding the following new definitions
thereto, in the appropriate alphabetical sequence:
'"Depositary" means, with respect to the 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 the 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 Securities of any such series shall mean the Depositary
with respect to the Securities of that series.
"Global Exchange Agent" has the meaning specified in Section
304.
"Restricted Period" has the meaning set forth in United States
Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7) (generally, the
first 40 days after the closing date and, with respect to unsold
allotments, until sold).
, (b) deleting in their entirety the definitions of "Business Day", "CEDEL,
S.A.", "Code", "Common Depositary", "Company Request", "Company Order",
"Component Currency", "Conversion Date", "Conversion Event", "Currency
Determination Agent", "Dollar Equivalent of the Currency Unit", "Dollar
Equivalent of the Foreign Currency", "Election Date", "Euro-clear", "Exchange
Rate Officer's Certificate", "Foreign Currency", "Officers' Certificate",
"Specified Amount", "United States" and "Valuation Date", (c) inserting in
proper alphabetical order the following definitions:
'"Business Day" means with respect to any Security, unless
otherwise specified in accordance with Section 301, any day, other than
a Saturday or Sunday, that meets each of the following applicable
requirements: such day is (a) not a day on which banking institutions
in the Borough of Manhattan, The City of New York are authorized or
required by law, regulation or executive order to close; (b) if the
Security is denominated in a Foreign Currency other than the ECU, (x)
not a day on which banking institutions are authorized or required by
law or regulation to close in the principal financial center of the
country issuing the Foreign Currency and (y) a day on which banking
institutions in such principal financial center are carrying out
transactions in such Foreign Currency; (c) if the Security is
denominated in ECU, (x) not a day on which banking institutions are
authorized or required by law or regulation to close in Luxembourg and
(y) an ECU clearing day, as determined by the ECU Banking Association
in Paris; and (d) if such Security is a LIBOR Security, a London
Banking Day.
"Cedel" means Cedel Bank, societe anonyme. All references in
the Indenture to "CEDEL, S.A." shall mean "Cedel".
"Code" means the Internal Revenue Code of 1986, as amended.
"Company Request" or "Company Order" means, respectively, a
written request or order signed in the name of the Company by its
Chairman of the Board, its Chief Executive Officer, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section
311(e).
"Conversion Event" means, with respect to any Foreign
Currency, (i) the unavailability to the Company of such Foreign
Currency for making payments thereof due to the imposition of exchange
controls or other circumstances beyond the Company's control, (ii) the
cessation of use of such Foreign Currency as a unit of domestic
exchange by the government or governments of the country or countries
which so used such currency or (iii) the cessation of use of such
Foreign Currency for the settlement of transactions by public
institutions of or within the international banking community.
"Currency Determination Agent", with respect to Securities of
any series, means a Person (other than the Trustee) designated pursuant
to Section 301 or Section 312.
"Dual Currency Security" means any Security as to which the
Company has a one time option of making all payments of principal
(premium, if any) and interest scheduled after the exercise of such
option in a specified currency other than the currency in which such
Security is denominated, all as specified in accordance with Section
301.
"Election Date" has the meaning specified in Section 311(e).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor, as operator of the Euroclear System.
All references in the Indenture to "Euro-clear" shall mean "Euroclear".
"Foreign Currency" means any currency or composite currency
actively maintained as a recognized unit of domestic exchange by the
government or governments of any country or countries other than the
United States.
"Indexed Security" means any Security as to which the amount
of payments of principal, premium, if any, and/or interest due thereon
is determined with reference to the rate of exchange between the
currency or currency unit in which the Security is denominated and any
other specified currency or currency unit, to the relationship between
two or more currencies or currency units, to the price of one or more
specified securities or commodities, to one or more securities or
commodities exchange indices or other indices or by other similar
methods or formulas, all as specified in accordance with Section 301.
"LIBOR" means, with respect to any series of Securities, the
rate specified as LIBOR for such Securities in accordance with Section
301.
"LIBOR Security" means any Security which bears interest at a
floating rate calculated with reference to LIBOR.
"London Banking Day" means, with respect to any LIBOR
Security, any day on which dealings in deposits in the currency in
which such LIBOR Security is denominated are transacted in the London
interbank market.
"Market Exchange Rate" with respect to any Foreign Currency on
any date means, unless otherwise specified in accordance with Section
301, the noon buying rate in The City of New York for cable transfers
in such Foreign Currency as certified for customs purposes by the
Federal Reserve Bank of New York for such Foreign Currency on the
second Business Day prior to such date (or, in the event such buying
rate is not then available, the most recently available buying rate for
such Foreign Currency).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, any Vice Chairman
of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee.
"United States" means the United States of America (including
the States and District of Columbia) and its possessions (including
Puerto Rico and the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and Northern Mariana Islands).'
, (d) deleting the parenthetical in the definition "Holder", (e) inserting
immediately before the period at the end of the definition of "Original Issue
Discount Security" the following:
"and which is designated as an Original Issue Discount Security
pursuant to Section 301"
, (f) deleting clause (ii) of the proviso appearing in the definition of
"Outstanding" and inserting in lieu thereof the following:
"(ii) the principal amount of any Indexed Security that shall be deemed
to be Outstanding for such purposes shall be deemed to be the face
amount thereof unless the specified terms of any such Indexed Security
provide otherwise and the principal amount of any Dual Currency
Security shall be the amount that would be due and payable with respect
to such Dual Currency Security as of the date of such determination
upon a declaration of acceleration pursuant to Section 502."
and (g) adding to the definition "Trust Indenture Act" ", as amended by the
Trust Indenture Reform Act of 1990," after the date "1939".
1.2 Amendment to Section 102 of the Indenture. Section 102 of
the Indenture is hereby amended by adding in the first line of the second
paragraph, after the word "certificate", the following:
"(other than certificates provided pursuant to Section 1006)".
1.3 Amendment to Section 108 of the Indenture. Section 108 of
the Indenture is hereby amended by deleting Section 108 in its entirety and
inserting in lieu thereof the following:
"If any provision hereof limits, qualifies or conflicts with
the duties imposed by any of Sections 310 through 317, inclusive, of
the Trust Indenture Act through the operation of Section 318(c)
thereof, such imposed duties shall control."
1.4 Amendment to Article 1 of the Indenture. Article 1
of the Indenture is hereby amended by adding the following new Section 117 and
new Section 118:
"SECTION 117. Certain Matters Relating to Currencies.
Each reference to any currency or currency unit in any
Security, or in the Board Resolution or supplemental indenture relating
thereto, shall mean only the referenced currency or currency unit and
no other currency or currency unit.
The Trustee shall segregate moneys, funds and accounts held by
the Trustee in one currency or currency unit from any moneys, funds or
accounts held in any other currencies or currency units,
notwithstanding any provision herein which would otherwise permit the
Trustee to commingle such amounts.
SECTION 118. Calculation of Principal Amount.
For the purposes of calculating the principal amount of any
Security denominated in a Foreign Currency for any purpose under this
Indenture, the principal amount of such Security at any time
outstanding shall be deemed to be that amount of Dollars that could be
obtained for such principal amount on the basis of a spot rate of
exchange specified to the Trustee for such Security in an Officers'
Certificate for such Foreign Currency into Dollars as of the date of
any such calculation."
1.5 Amendment to Section 203 of the Indenture. Section
203 of the Indenture is amended by adding a new paragraph at the end thereof,
as follows:
"Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form."
1.6 Amendment to Section 301 of the Indenture. Section 301 of
the Indenture is hereby amended by (a) deleting the word "temporary" from the
second line of paragraph (11), (b) deleting paragraph (16) in its entirety, (c)
adding the phrase "and 1009" immediately following the phrase "Section 1008" in
paragraph (21), (d) deleting paragraph (22) in its entirety, (e) redesignating
paragraph (23) as paragraph (27) and (f) inserting the following paragraphs in
proper numerical order:
"(16) if the Securities of such series are issuable as Indexed
Securities, the manner in which the amount of payments of principal
(premium, if any) and/or interest due thereon shall be determined;
(22) whether the 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, if any, for such
global Security or Securities, whether such global form shall be
permanent or temporary and, if applicable, the Exchange Date;
(23) if 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 may be exchanged for permanent
Securities and whether the permanent Securities will be Registered
Securities and/or Bearer Securities and will be in certificated and/or
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 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;
(24) if the Securities of such series are issuable as Dual
Currency Securities, the specified currency other than the denominated
currency in which all payments of principal (premium, if any) and
interest may be made at the option of the Company, and any other
special terms with respect to such Securities (which terms shall not be
inconsistent with the provisions of this Indenture);
(25) if the Securities of such series may be converted into or
exchanged for other securities of the Company or any other Persons, the
terms and conditions pursuant to which the Securities of such series
may be converted or exchanged;
(26) if the principal of (or premium, if any) or interest, if
any, on the Securities of such series are to be payable, at the
election of the Company or a Holder thereof, in securities or other
property, the type and amount of such securities or other property, or
the method by which such amount shall be determined, and the periods
within which, and the terms and conditions upon which, any such
election may be made; and".
1.7 Amendment to Section 303 of the Indenture. Section 303 of
the Indenture is hereby amended by (a) deleting the first two sentences of the
third paragraph and inserting in lieu thereof the following:
"At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, together with any coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and
deliver such Securities; provided, however, that in connection with the
sale of a Security during the Restricted Period, no Bearer Security in
definitive form shall be mailed or otherwise delivered to any location
in the United States; and provided, further that a Bearer Security in
definitive form may be delivered only if the Person entitled to receive
such Bearer Security shall have furnished a certificate substantially
in the form set forth in Exhibit A to this Indenture, dated no earlier
than 15 days prior to the date on which such Bearer Security is
delivered, unless a certificate substantially in the form set forth in
Exhibit A to this Indenture has previously been furnished pursuant to
Section 304. If any Security shall be represented by a permanent global
Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary
global Security shall be deemed to be delivery in definitive form by
the Company of such beneficial owner's interest in such permanent
global Security."
, (b) replacing the word "definitive" on the third line of the sixth full
paragraph with the word "permanent" and (c) inserting as the last two paragraphs
of such Section the following:
"Any temporary global Security and any permanent global
Security shall, unless otherwise provided therein, be delivered to a
Depositary designated pursuant to Section 301, for the benefit, in the
case of a global Security in bearer form, of Euroclear and Cedel, and
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct). With respect
to temporary global Securities in bearer form, on or prior to the last
day of the Restricted Period, the Company shall deliver to the Trustee
or the Global Exchange Agent as applicable definitive Bearer Securities
and definitive Registered Securities executed by the Company.
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."
1.8 Amendment to Section 304 of the Indenture. Section 304 of
the Indenture is hereby amended by deleting Section 304 in its entirety and
inserting in lieu thereof the following:
"SECTION 304. Temporary Securities; Exchange of Temporary Global
Securities and Permanent Global Securities in Bearer Form.
Pending the preparation of permanent Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the permanent
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 Securities may
determine, as evidenced by their execution of such Securities. Any such
temporary Securities may be in global form, representing such of the
Outstanding Securities of such series as shall be specified therein.
Except in the case of temporary global Securities in bearer
form (which shall be exchanged in accordance with the provisions of the
following paragraphs), if temporary Securities of any series are
issued, the Company will cause permanent Securities of that series to
be prepared within a reasonable period of time after the issue date of
such temporary Securities. After the preparation of permanent
Securities of such series, the temporary Securities of such series
shall be exchangeable for permanent Securities of such series and of a
like Stated Maturity and with like terms and provisions upon surrender
of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and (in
accordance with a Company Order delivered at or prior to the
authentication of the first permanent Security of such series) the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of permanent Securities of the same series of
authorized denominations and of a like Stated Maturity and with like
terms and provisions; provided, however, unless otherwise specified
pursuant Section 301, no permanent Bearer Securities shall be delivered
in exchange for a temporary Registered Security; and provided, further,
that permanent Bearer Securities shall be delivered in exchange for a
temporary global Security in bearer form only in compliance with the
conditions set forth in Section 303 and this Section 304. Until
exchanged as hereinabove provided, the temporary Securities of any
series shall in all respects be entitled to the same benefits under
this Indenture as permanent Securities of the same series and tenor
authenticated and delivered hereunder.
Within a reasonable period of time after the Restricted Period
but in any event not later than the date specified in or determined
pursuant to the terms of any temporary global Security in bearer form,
the Securities represented by any such temporary global Security in
bearer form may be exchanged for (i) in whole, definitive Bearer
Securities or (ii) in whole, Securities to be represented thereafter by
one or more permanent global Securities in bearer form, without
interest coupons, and/or (iii) in whole or in part, definitive
Registered Securities (the date of such exchange, the "Exchange Date");
provided, however, that if definitive Bearer Securities have previously
been issued in exchange for an interest in a permanent global Security
in bearer form representing Securities of the same series, then (unless
the Securities which would continue to be represented by any such
permanent global Security in bearer form would be regarded by Euroclear
and Cedel as fungible with any such definitive Bearer Securities issued
in partial exchanges for interests in any such permanent global
Security) interests in such temporary global Security in bearer form
shall only thereafter be exchangeable, in whole, for definitive Bearer
Securities, definitive Registered Securities or any combination
thereof; provided, further, however, that if definitive Bearer
Securities have previously been issued in exchange for interests in a
temporary global Security in bearer form representing Securities of the
same series, then interests in any such temporary global Security shall
not be exchangeable for interests in a permanent global Security in
bearer form of the series (unless the Securities to be represented by
any such permanent global Security in bearer form would be regarded by
Euroclear and Cedel as fungible with such previously issued definitive
Bearer Securities). On the Exchange Date, any such temporary global
Security shall be surrendered by the Depositary to the Trustee as the
Company's agent for such purpose, or the agent appointed by the Company
pursuant to Section 301 to effect the exchange of any such temporary
global Security for permanent Securities (the "Global Exchange Agent"),
and following such surrender, the Trustee or the Global Exchange Agent
(as authorized by the Trustee as an Authenticating Agent pursuant to
Section 614) shall (1) endorse any such temporary global Security to
reflect the reduction of its principal amount by an equal aggregate
principal amount of such permanent Securities being registered, (2)
endorse the applicable permanent global Security in bearer form, if
any, to reflect the initial amount, or an increase in the amount of
Securities represented thereby, (3) manually authenticate such
definitive Bearer Securities, definitive Registered Securities or
permanent global Security, as the case may be, (4) deliver such
definitive Bearer Securities or definitive Registered Securities, as
the case may be, to the Holder thereof or, as the case may be, deliver
such permanent global Security in bearer form to the Depositary to be
held outside the United States for the accounts of Euroclear and Cedel,
for credit to the respective accounts at Euroclear and Cedel,
designated by or on behalf of the beneficial owners of such Securities
(or to such other accounts as they may direct) and (5) redeliver such
temporary global Security to the Depositary, unless such temporary
global Security shall have been cancelled in accordance with Section
309 hereof; provided, however, that, unless otherwise specified in such
temporary global Security or unless a certificate substantially in the
form set forth in Exhibit B to this Indenture has previously been
provided pursuant to this Section 304, upon such presentation by the
Depositary, such temporary global Security shall be accompanied by a
certificate dated the Exchange Date, or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged for definitive Bearer Securities,
definitive Registered Securities or Securities represented by one or
more permanent global Securities in bearer form, as the case may be,
and a certificate dated the Exchange Date or a subsequent date and
signed by Cedel, as to the portion of such temporary global Security
held for its account then to be exchanged for definitive Bearer
Securities, definitive Registered Securities or Securities represented
by one or more permanent global Securities in bearer form, as the case
may be, each substantially in the form set forth in Exhibit B to this
Indenture. Each certificate substantially in the form of Exhibit B
hereto of Euroclear or Cedel, as the case may be, shall be based on
certificates of the account holders listed in the records of Euroclear
or Cedel, as the case may be, as being entitled to all or any portion
of the applicable temporary global Security. An account holder of
Euroclear or Cedel, as the case may be, desiring to effect the exchange
of an interest in a temporary global Security in bearer form for
definitive Bearer Securities, definitive Registered Securities or
Securities represented by one or more permanent global Securities in
bearer form, as the case may be, shall instruct Euroclear or Cedel, as
the case may be, to request such exchange on its behalf and shall
deliver to Euroclear or Cedel, as the case may be, a certificate
substantially in the form of Exhibit A hereto and dated no earlier than
15 days prior to the Exchange Date.
The delivery to the Trustee or the Global Exchange Agent by
Euroclear or Cedel of any certificate substantially in the form of
Exhibit B hereto may be relied upon by the Company and the Trustee or
the Global Exchange Agent as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to Euroclear or
to Cedel, as the case may be, pursuant to the terms of this Indenture.
At any time after the last day of the Restricted Period, upon
30 days' notice to the Trustee or the Global Exchange Agent by
Euroclear or Cedel, as the case may be, acting at the request of or on
behalf of the beneficial owner, Securities represented by a permanent
global Security in bearer form may be exchanged in whole for definitive
Bearer Securities or in whole or in part for definitive Registered
Securities and the Trustee or the Global Exchange Agent shall
authenticate and deliver, in exchange for each portion of such
permanent global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to
be exchanged, which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, as
contemplated by Section 301, shall be in the form of Bearer Securities
or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that if
definitive Bearer Securities are issued in partial exchange for
Securities represented by such a permanent global Security or by a
temporary global Security in bearer form of the same series, such
issuance shall (unless the Securities which would continue to be
represented by such permanent global Security would be regarded by
Euroclear and Cedel as fungible with any such definitive Bearer
Securities issued in partial exchange for Securities represented by any
such permanent global Security or any such temporary global Security of
the same series) give rise to the exchange of such permanent global
Security in whole for, at the option of the Holders entitled thereto,
definitive Bearer Securities, definitive Registered Securities or any
combination thereof. On or prior to the thirtieth day following receipt
by the Trustee or the Global Exchange Agent of such notice with respect
to the exchange of such Securities or, if such day is not a Business
Day, the next succeeding Business Day, the permanent global Security
shall be surrendered by the Depositary to the Trustee or the Global
Exchange Agent, as the Company's agent for such purpose, to be so
exchanged for definitive Securities following such surrender, upon the
request of Euroclear or Cedel, as the case may be, and the Trustee or
the Global Exchange Agent shall (1) endorse the applicable permanent
global Security to reflect the reduction of its principal amount by the
aggregate principal amount of such definitive Securities being
requested, (2) cause the terms of such Securities and coupons, if any,
to be entered on one or more definitive Bearer Securities and/or
definitive Registered Securities, as the case may be, (3) manually
authenticate such definitive Securities and (4) with respect to
definitive Bearer Securities, deliver such definitive Securities
outside the United States to Euroclear or Cedel, as the case may be,
for or on behalf of the beneficial owner thereof, in exchange for a
portion of such permanent global Security.
Unless otherwise specified in any such temporary global
Security or permanent global Security in bearer form, any such exchange
shall be made free of charge to the beneficial owners of such temporary
global Security or permanent global Security, except that a Person
receiving definitive 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 Securities in person at the
offices of Euroclear or Cedel or at the Corporate Trust Office of the
Trustee or at the office or agency in a Place of Payment for Securities
of such series, as the case may be. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary global
Security or a permanent global Security in bearer form shall be
delivered only outside the United States.
Until exchanged in full as herein above provided, any
temporary global Security or permanent global Security in bearer form
shall in all respects be entitled to the same benefits under this
Indenture as definitive Bearer Securities of the same series and tenor
authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on any such
temporary global Security on an Interest Payment Date for Securities of
such series occurring prior to the applicable Exchange Date shall be
payable to Euroclear and Cedel on such Interest Payment Date only upon
delivery by Euroclear and Cedel to the Trustee or the Global Exchange
Agent of a certificate or certificates substantially in the form set
forth in Exhibit B to this Indenture, 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, as the case may be, a certificate
substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by
the Trustee in exchange for a portion of a temporary global Security in
bearer form or a permanent global Security in bearer form shall not
bear a coupon for any interest which shall theretofore have been duly
paid by the Trustee to Cedel or Euroclear or by the Company to the
Trustee in accordance with the provisions of this Section 304."
1.9 Amendment to Section 305 of the Indenture. Section 305 of
the Indenture is hereby amended by deleting Section 305 in its entirety and
inserting in lieu thereof the following:
"SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Company in a Place of
Payment being herein sometimes collectively 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. The
Trustee is hereby appointed Security Registrar for the purpose of
registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency in a Place of
Payment for that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the
same series, of any authorized denominations and in a like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions.
Except as set forth below, 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
denominations and in a like aggregate principal amount and of a like
Stated Maturity and with like terms and conditions, upon surrender of
the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Except as
otherwise specified pursuant to Section 301, Registered Securities may
not be exchanged for Bearer Securities.
Notwithstanding any other provision of this Section
or Section 304, unless and until it is exchanged in whole or in part
for Registered Securities in definitive form, a global Security
representing all or a portion of the Registered Securities of a series
may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for
such series or a nominee of such successor Depositary.
At the option of the Holder, definitive Bearer
Securities of any series may be exchanged for definitive Registered
Securities of the same series of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the
definitive 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 definitive 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
definitive Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside
the United States. Notwithstanding the foregoing, in case a definitive
Bearer Security of any series is surrendered at any such office or
agency in exchange for a definitive Registered Security of the same
series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such definitive Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be (or, if such coupon is
so surrendered with such definitive Bearer Security, such coupon shall
be returned to the Person so surrendering the definitive Bearer
Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the definitive 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.
Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for Securities of a
series in registered form notifies the Company that it is unwilling or
unable to continue as Depositary for the Securities of such series or
if at any time the Depositary for the Securities for such series shall
no longer be eligible under Section 303, the Company shall appoint a
successor Depositary with respect to the Securities for such series. If
a successor Depositary for the 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 shall no longer be effective with respect to
the Securities for such series and the Company will issue, and the
Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Registered Securities of such series, will
authenticate and deliver Registered Securities in definitive form in
exchange for an aggregate principal amount equal to the principal
amount of the global Security or Securities representing such
Securities.
The Company may at any time and in its sole
discretion determine that the Registered 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 issue, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Registered Securities
of such series, will authenticate and deliver, Registered Securities of
such series in definitive form and in an aggregate principal amount
equal to the principal amount in exchange for the global Security or
Securities representing such Registered Securities.
If specified by the Company pursuant to Section 301
with respect to a series of Securities in registered form, the
Depositary for such series of Securities may surrender a global
Security for such series of Securities in exchange in whole or in part
for Registered 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, (i) to each Person
specified by such Depositary a new Registered Security or Securities of
the same series, of like tenor and terms and of any authorized
denomination 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 (ii) 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 Registered Securities delivered
to Holders thereof.
Upon the exchange in full of a global Security for
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 Securities are so registered.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered
for registration of transfer or exchange shall (if so required by the
Company or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to
Section 304, 906 or 1108 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any series during a
period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities of that series
selected for redemption under Section 1104 and ending at the close of
business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the
relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption as a whole
or in part, except the unredeemed portion of any Security being
redeemed in part, or (iii) to exchange any Bearer Security so selected
for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for
redemption."
1.10 Amendment to Section 307 of the Indenture. Section
307 of the Indenture is hereby amended by adding, as the third paragraph
thereof, a new paragraph, as follows:
"Unless otherwise provided or contemplated by Section 301,
every permanent global Security in bearer form will provide that
interest, if any, payable on any Interest Payment Date will be paid to
each of Euroclear and Cedel with respect to that portion of such
permanent global Security held for its account by the Depositary. Each
of Euroclear and Cedel will in such circumstances credit the interest
received by it in respect of such permanent global Security to the
accounts of the beneficial owners thereof."
1.11 Amendment to Section 308 of the Indenture. Section
308 of the Indenture is hereby amended by adding, as the last paragraph thereof,
a new paragraph, as follows:
"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."
1.12 Amendment to Section 311 of the Indenture. Section 311 of
the Indenture is hereby amended by deleting Section 311 in its entirety and
inserting in lieu thereof the following:
"SECTION 311. Currency and Manner of Payments in Respect
of Registered Securities.
Unless otherwise specified in accordance with Section 301 with
respect to any series of Registered Securities, the following
provisions shall apply:
(a) Except as provided in paragraphs (b) and (d) below, the
principal of, premium, if any, and interest on Registered Securities of
any series denominated in a Foreign Currency will be payable by the
Company in Dollars based on the equivalent of that Foreign Currency
converted into Dollars in the manner described in paragraph (c) below.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series denominated in a Foreign Currency
that Holders shall have the option, subject to paragraph (d) below, to
receive payments of principal of, premium, if any, and interest on such
Registered Securities in such Foreign Currency by delivering to the
Trustee (or to any such Paying Agent), a written election, to be in
form and substance satisfactory to the Trustee (or to any such Paying
Agent) not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in such Foreign Currency, such election
will remain in effect for such Holder until changed by such Holder by
written notice to the Trustee (or to any such Paying Agent); provided,
however, that any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment
date to be effective for the payment to be made on such payment date;
and provided, further, that no such change or election may be made with
respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred, the
Company has exercised any satisfaction or discharge options pursuant to
Article Four or Section 1009 or notice of redemption has been given by
the Company pursuant to Article Eleven. In the event any Holder makes
any such election, such election will not be effective as to any
transferee of such Holder and such transferee shall be paid in Dollars
unless such transferee makes an election as specified above; provided,
however, that such election, if in effect while funds are on deposit
with respect to the Registered Securities as described in Section
401(a)(1)(B) or Section 1009, will be effective on any transferee of
such Holder unless otherwise specified pursuant to Section 301 for such
Registered Securities. Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee (or to any
duly appointed Paying Agent) not later than the close of business on
the applicable Election Date will be paid in the amount due on the
applicable payment date in Dollars.
(c) With respect to any Registered Security denominated in a
Foreign Currency and payable in Dollars, the amount of Dollars so
payable will be determined by the Currency Determination Agent based on
the indicative quotation in The City of New York selected by the
Currency Determination Agent at approximately 11:00 A.M., New York City
time, on the second Business Day preceding the applicable payment date
that yields the least number of Dollars upon conversion of the Foreign
Currency. Such selection shall be made from among the quotations
appearing on the bank composite or multi-contributor pages of the
Reuters Monitor Foreign Exchange Service or, if not available, the
Telerate Monitor Foreign Exchange Service. If such quotations are
unavailable from either such foreign exchange service, such selection
shall be made from the quotations received by the Currency
Determination Agent from no more than three nor less than two
recognized foreign exchange dealers in The City of New York selected by
the Currency Determination Agent and approved by the Company (one of
which may be the Currency Determination Agent) for the purchase by the
quoting dealer, for settlement on such payment date, of the aggregate
amount of the Foreign Currency payable on such payment date in respect
of all Securities denominated in such Foreign Currency and for which
the applicable dealer commits to execute a contract. If no such bid
quotations are available, payments shall be made in the Foreign
Currency.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Registered Securities are payable, then
with respect to each date for the payment of principal of, premium, if
any, and interest on such Registered Securities occurring after the
last date on which such Foreign Currency was used, the Company may make
such payment in Dollars. The Dollar amount to be paid by the Company to
the Trustee and by the Trustee or any Paying Agent to the Holders of
such Registered Securities with respect to such payment date shall be
determined by the Currency Determination Agent on the basis of the
Market Exchange Rate. Any payment in respect of such Security made
under such circumstances in Dollars will not constitute an Event of
Default hereunder.
(e) For purposes of this Indenture the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which
is a component currency of any composite currency, including,
without limitation, the ECU.
"Election Date" shall mean, for any Registered
Security, the date specified pursuant to Section 301(7).
(f) Notwithstanding any other provisions of this Section 311,
the following shall apply: (i) if the official unit of any Component
Currency is altered by way of combination or subdivision, the number of
units of that currency as a component shall be divided or multiplied in
the same proportion, (ii) if two or more Component Currencies are
consolidated into a single currency, the amounts of those currencies as
components shall be replaced by an amount in such single currency equal
to the sum of the amounts of the consolidated Component Currencies
expressed in such single currency, (iii) if any Component Currency is
divided into two or more currencies, the amount of that original
Component Currency as a component shall be replaced by the amounts of
such two or more currencies having an aggregate value on the date of
division equal to the amount of the former Component Currency
immediately before such division and (iv) in the event of an official
redenomination of any currency (including without limitation, a
composite currency), the obligations of the Company to make payments in
or with reference to such currency on any Registered Securities shall,
in all cases, be deemed immediately following such redenomination to be
obligations to make payments in or with reference to that amount of
redenominated currency representing the amount of such currency
immediately before such redenomination.
(g) All determinations referred to in this Section 311 made by
the Currency Determination Agent shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes
and irrevocably binding upon the Holders of the applicable Registered
Securities. The Currency Determination Agent shall promptly give
written notice to the Trustee of any such decision or determination.
The Currency Determination Agent shall have no liability for any
determinations referred to in this Section 311 made by it.
(h) The Trustee shall be fully justified and protected in
relying and acting upon information received by it from the Company or
the Currency Determination Agent with respect to any of the matters
addressed in or contemplated by this Section 311 and shall not
otherwise have any duty or obligation to determine such information
independently."
1.13 Amendment to Section 401 of the Indenture. Section 401 of
the Indenture is amended by (a) deleting the lead-in clause and subparagraph (i)
of paragraph (a)(1)(B) thereof in their entirety and inserting in lieu thereof
the following:
"(B) except as otherwise specified pursuant to
Section 301 for the Securities of such series, with respect to all
Outstanding Securities of such series described in (A) above (and, in
the case of (i), (ii) or (iii) below, any coupons appertaining thereto)
not theretofore delivered to the Trustee for cancellation:
(i) the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust an amount
in the currency or currency unit in which the Securities of
such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and
except as provided in Sections 311(b) and 311(d), in which
case the deposit to be made with respect to Securities for
which an election has occurred pursuant to Section 311(b) or a
Conversion Event has occurred as provided in Section 311(d),
shall be made in the currency or currency unit in which such
Securities are payable as a result of such election or
Conversion Event), sufficient to pay and discharge the entire
indebtedness on all such Outstanding Securities of such series
and any related coupons for principal (and premium, if any)
and interest, if any, to the Stated Maturity, or any
Redemption Date as contemplated by Section 402, as the case
may be; or"
, (b) adding a new paragraph (iii) of Section 401(a)(1)(B), as follows:
"or (iii) the Company has deposited or caused to be deposited
with the Trustee such combination of trust funds or obligations in
trust pursuant to (i) and (ii) above, respectively, as will, in a
written opinion of independent public accountants delivered to the
Trustee, together with the predetermined and certain income to accrue
on such obligations in trust, be sufficient to pay and discharge when
due the entire indebtedness on all such Outstanding Securities of such
series and any related coupons for unpaid principal (and premium, if
any) and interest, if any, to the Stated Maturity or any Redemption
Date as contemplated by Section 402, as the case may be;"
and (c) deleting paragraph (b) thereof in its entirety and inserting in lieu
thereof the following:
"(b) Upon the satisfaction of the conditions set forth in this
Section 401 with respect to all the 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, and the Holders of the Securities
of such series and any related coupons shall look for payment only to
the funds or obligations deposited with the Trustee pursuant to Section
401(a)(1)(B); provided, however, that in no event shall the Company be
discharged from (a) any payment obligations in respect of Securities of
such series and any related coupons which are deemed not to be
Outstanding under clause (c) of the definition thereof if such
obligations continue to be valid obligations of the Company under
applicable law, (b) from any obligations under Sections 402(b), 607,
610 and 1008 and (c) from any obligations under Sections 304, 305 and
306 (except that Securities of such series issued upon registration of
transfer or exchange or in lieu of mutilated, lost, destroyed or stolen
Securities and any related coupons shall not be obligations of the
Company) and Section 311, 701 and 1002; and provided, further, that in
the event a petition for relief under Title 11 of the United States
Code or a successor statute is filed and not discharged with respect to
the Company within 91 days after the deposit, the entire indebtedness
on all Securities of such series and any related coupons shall not be
discharged, and in such event the Trustee shall return such deposited
funds or obligations as it is then holding to the Company upon Company
Request. Notwithstanding the satisfaction of the conditions set forth
in this Section 401 with respect to all the Securities of any series
not payable in Dollars, upon the happening of any Conversion Event the
Company shall be obligated to make the payments in Dollars required by
Section 311(d) to the extent that the Trustee is unable to convert any
Foreign Currency or currency unit in its possession pursuant to Section
401(a)(1)(B) into the Dollar equivalent of such Foreign Currency or
currency unit, as the case may be. If, after the deposit referred to in
Section 401 has been made, (x) the Holder of a Security is entitled to,
and does, elect pursuant to Section 311(b) to receive payment in a
currency or currency unit other than that in which the deposit pursuant
to Section 401 was made, or (y) a Conversion Event occurs as
contemplated in Section 311(d), then the indebtedness represented by
such Security shall be fully discharged to the extent that the deposit
made with respect to such Security shall be converted into the currency
or currency unit in which such Security is payable. The Trustee shall
return to the Company any non-converted funds or securities in its
possession after such payments have been made."
1.14 Amendment to Section 402 of the Indenture. Section 402 of
the Indenture is hereby amended by adding the phrase "or Section 1009"
immediately after the phrase "Section 401" in each place it appears therein.
1.15 Amendment to Section 502 of the Indenture. Section 502 of
the Indenture is hereby amended by (a) deleting the first paragraph therein in
its entirety and inserting in lieu thereof the following:
"If an Event of Default with respect to Securities of any
series and any related coupons at the time Outstanding occurs and is
continuing, then in every such case, unless the principal of all of the
Securities of such series shall have already become due and payable,
the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal
amount (or if any Securities of that series are (i) Original Issue
Discount Securities, such portion of the principal amount as may be
specified in the terms of those Securities, or (ii) Indexed Securities
or Dual Currency Securities, the amount determined in accordance with
the specified terms of those Securities) of all of the Securities of
that series to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal amount (or specified amount) shall
become immediately due and payable."
and (b) deleting the phrase "311(b), 311(d) and 311(e)" appearing therein and
inserting the phrase "311(b) and 311(d)" in lieu thereof.
1.16 Amendment to Section 504 of the Indenture. Section 504 of
the Indenture is hereby amended by deleting paragraph (i) therein in its
entirety and inserting in lieu thereof the following:
"(i) to file and prove a claim for the whole amount of
principal (or, if the Securities of such series are Original Issue
Discount Securities, Indexed Securities or Dual Currency Securities,
such amount as may be due and payable with respect to such Securities
pursuant to a declaration in accordance with Section 502) (and premium,
if any) and interest, if any, owing and unpaid in respect of the
Securities of such series and any related 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 of the Securities of such series
and any related coupons allowed in such judicial proceeding, and"
1.17 Amendment to Section 516 of the Indenture. Section 516 of
the Indenture is hereby amended by deleting such Section in its entirety and
inserting in lieu thereof the following:
"SECTION 516. Judgment Currency.
If for the purpose of obtaining a judgment in any court with
respect to any obligation of the Company hereunder or under any
Security or any related coupon it shall become necessary to convert
into any other currency or currency unit any amount in the currency or
currency unit due hereunder or under such Security or coupon, then such
conversion shall be made at the spot rate of exchange prevailing on the
date the Company shall make payment to any Person in satisfaction of
such judgment. If pursuant to any such judgment, conversion shall be
made on a date other than the date payment is made and there shall
occur a change between such spot rate of exchange and the spot rate of
exchange prevailing on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the
amount paid is equal to the amount in such other currency or currency
unit which, when converted at the spot rate of exchange prevailing on
the date of payment or distribution, is the amount then due hereunder
or under such Security or coupon. Any amount due from the Company under
this Section 516 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other
sums due hereunder or in respect of any Security or coupon. In no
event, however, shall the Company be required to pay more in the
currency or currency unit due hereunder or under such Security or
coupon at the spot rate of exchange prevailing when payment is made
than the amount of currency or currency unit stated to be due hereunder
or under such Security or coupon so that in any event the Company's
obligations hereunder or under such Security or coupon will be
effectively maintained as obligations in such currency or currency
unit, and the Company shall be entitled to withhold (or be reimbursed
for, as the case may be) any excess of the amount actually realized
upon any such conversion over the amount due and payable on the date of
payment or distribution."
1.18 Amendment to Section 602 of the Indenture. Section 602 of
the Indenture is amended by deleting in its entirety the last sentence of
Section 602.
1.19 Amendment to Section 607 of the Indenture.
Section 607 of the Indenture is amended by adding the following paragraphs:
"When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section
501(5) or (6), the expenses and the compensation for the
services are intended to constitute expenses of administration
under any bankruptcy law.
The Company's obligations under this Section 607 and
any lien arising hereunder shall survive the resignation or
removal of the Trustee, the discharge of the Company's
obligations pursuant to Article Four of this Indenture and/or
the termination of this Indenture."
1.20 Amendment to Section 608 of the Indenture. Section
608 is amended by deleting Section 608 in its entirety and inserting in lieu
thereof the following:
"The Trustee for the Securities shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the
period of time required thereby. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in
the penultimate paragraph of Section 310(b) of the Trust Indenture Act.
In determining whether the Trustee has a conflicting interest as
defined in Section 310(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded Securities of any
particular series of Securities other than that series."
1.21 Amendment to Section 609 of the Indenture. Section 609
is amended by deleting Section 609 in its entirety and inserting in lieu
thereof the following:
"There shall at all times be a Trustee hereunder which shall be
(i) a corporation organized and doing business under the
laws of the United States of America, any state thereof, or the
District of Columbia, authorized under such laws to exercise corporate
trust powers, and subject to supervision or examination by Federal or
State authority, or
(ii) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted to
act as Trustee pursuant to a rule, regulation, or other order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trustee,
having a combined capital and surplus of at least $50,000,000 and having its
Corporate Trust Office in the Borough of Manhattan, The City of New York, or in
such other city as contemplated by Section 301 with respect to any series of
Securities. If such corporation or other Person publishes reports of condition
at least annually, pursuant to law or to requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation or other Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under the common control with the
Company shall serve as Trustee for the Securities of any series. 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 hereunder
specified in this Article."
1.22 Amendment to Section 610 of the Indenture. Section
610(d)(1) of the Indenture is hereby amended by: (a) deleting the phrase
"608(a)" after the word "Section" in the first line thereof and adding the
phrase in lieu thereof the phrase "310(b) of the Trust Indenture Act pursuant to
Section 608 hereof" and (b) adding immediately after the word "months" in the
fourth line thereof the phrase ", unless the Trustee's duty to resign is stayed
in accordance with the provisions of Section 310(b) of the Trust Indenture Act."
1.23 Amendment to Section 613 of the Indenture. Section 613 of
the Indenture is hereby amended by deleting Section 613 in its entirety and
inserting in lieu thereof the following:
"SECTION 613.Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the
Trust Indenture Act, excluding any creditor relationship
listed in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent indicated."
1.24 Amendment to Section 703 of the Indenture. Section 703 of
the Indenture is hereby amended by deleting Section 703 in its entirety and
inserting in lieu thereof the following:
"SECTION 703. Reports by Trustee.
On or about May 15 of each year, beginning with May
15, 1996, the Trustee shall, if required by law, mail to each
Holder of a Security a brief report dated as of such date that
complies with Section 313(a) of the Trust Indenture Act
ss.313(a). The Trustee also shall comply with Sections 313(b)
and 313(c) of the Trust Indenture Act."
1.25 Amendment of Section 705 of the Indenture.
Section 705 of the Indenture is hereby deleted in its entirety.
1.26 Amendment of Section 902 of the Indenture.
Section 902 of the Indenture is amended by deleting the "." at the end of
paragraph (4) and adding the following thereafter:
",or
(5) amend this Indenture to modify its provisions
relating to the subordination of any Security in a manner
adverse to the Holder thereof."
1.27 Amendment to Section 1006 of the Indenture. Section 1006
of the Indenture is amended by deleting Section 1006 in its entirety and
inserting in lieu thereof the following:
"The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement signed by the
principal executive officer, principal finance officer or principal
accounting office of the Company stating whether or not to the best of
his knowledge, the Company is in compliance with all conditions and
covenants under this Indenture.
For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of
notice provided under this Indenture."
1.28 Amendment to Sections 1001, 1003, 1106, 1107 and 1203 of
the Indenture. Sections 1001, 1003, 1106, 1107 and 1203 of the Indenture are
hereby amended by deleting the phrase "311(b), 311(d) and 311(e)" appearing in
each such Section and inserting the phrase "311(b) and 311(d)" in lieu thereof.
1.29 Amendment to Section 1008 of the Indenture. Section 1008
of the Indenture is hereby amended by is deleting the second full paragraph in
its entirety and inserting in lieu thereof the following:
"The Company will pay to a Holder who is a United States Alien
(as defined below) such additional amounts (the "Additional Amounts")
as may be necessary so that every net payment of principal of and
interest on any Security or of any coupon appertaining thereto, after
deduction or withholding for or on account of any present or future
tax, assessment or other governmental charge imposed upon such Holder,
or by reason of the making of such payment, by the United States or any
taxing authority thereof or therein, will not be less than the amount
provided for in such Security or in such coupon to be then due and
payable. The Company shall not be required, however, to make any
payment of any Additional Amounts for or on account of:
(a) any tax, assessment or other governmental charge which would not have been
imposed but for (i) the existence of any present or former connection
between such holder (or between a fiduciary, settlor, beneficiary of,
member or shareholder of, or possessor of a power over, such Holder, if
such Holder is an estate, trust, partnership or corporation) and the United
States, including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having
been a citizen or resident or treated as a resident thereof or being or
having been engaged in trade or business or present therein, or having or
having had a permanent establishment therein, or (ii) the presentation of a
Security or any coupon appertaining thereto for payment on a date more than
10 days after the date on which such payment becomes due and payable or the
date on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer, excise, personal property
or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason of such
Holder's past or present status as a passive foreign investment company, a
controlled foreign corporation, a personal holding company or foreign
personal holding company with respect to the United States, or as a
corporation which accumulates earnings to avoid United States federal
income tax;
(d) any tax, assessment or other governmental charge which is payable otherwise
than by withholding from payment of principal of, or interest on, such
Security or coupon;
(e) any tax, assessment or other governmental charge required to be withheld by
any paying agent from any payment of principal of, or interest on, any
Security or coupon if such payment can be made without withholding by any
other paying agent;
(f) any tax, assessment or other governmental charge which would not have been
imposed but for the failure to comply with certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the United States of the Holder or
beneficial owner of such Security or coupon, if such compliance is required
by statute or by regulation of the United States Treasury Department as a
precondition to relief or exemption from such tax, assessment or other
governmental charge;
(g) any tax, assessment or other governmental charge imposed on interest
received by (i) a 10% shareholder (as defined in Section 871(h)(3)(B) of
the United States Internal Revenue Code of 1986, as amended (the "Code")
and the regulations that may be promulgated thereunder) of the Company or
(ii) a controlled foreign corporation with respect to the Company within
the meaning of the Code; or
(h) any combination of items (a), (b), (c), (d), (e), (f) and (g), nor shall
any Additional Amounts be paid to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such Security or a
coupon appertaining thereto to the extent that a beneficiary or settlor
with respect to such fiduciary, or a member of such partnership or a
beneficial owner thereof would not have been entitled to the payment of
such Additional Amounts had such beneficiary, settlor, member or beneficial
owner been the Holder of the Securities or any coupon appertaining
thereto."
1.30 Amendment to Section 1009 of the Indenture. A new Section 1009 is added
as follows:
"SECTION 1009. Defeasance of Certain Obligations.
(a) If specified pursuant to Section 301 to be applicable to
the Securities of any series, the Company may omit to comply with any
term, provision or condition set forth in Section 801, Section 1005 and
any other covenant not set forth herein and specified pursuant to
Section 301 to be applicable to the Securities of such series and
subject to this Section 1009, and any such omission with respect to
such Sections shall not be an Event of Default, in each case with
respect to the Securities of such series, provided, however, that the
following conditions have been satisfied:
(1) with respect to all Outstanding Securities of such series and
any coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation,
(i) the Company has deposited or caused to
be deposited with the Trustee as trust funds in trust
an amount in the currency or currency unit in which
the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the
Securities of such series and except as provided in
Sections 311(b) and 311(d), in which case the deposit
to be made with respect to Securities for which an
election has occurred pursuant to Section 311(b) or a
Conversion Event has occurred as provided in Section
311(d), shall be made in the currency or currency
unit in which such Securities are payable as a result
of such election or Conversion Event), sufficient to
pay and discharge the entire indebtedness on all such
Outstanding Securities of such series and any related
coupons for principal (and premium, if any) and
interest to the Stated Maturity or any Redemption
Date as contemplated by Section 402, as the case may
be; or
(ii) the Company has deposited or caused to
be deposited with the Trustee as obligations in trust
such amount of Government Obligations as will, in a
written opinion of independent public accountants
delivered to the Trustee, together with the
predetermined and certain income to accrue thereon
(without consideration of any reinvestment thereof),
be sufficient to pay and discharge when due the
entire indebtedness on all such Outstanding
Securities of such series and any related coupons for
unpaid principal (and premium, if any) and interest,
if any, to the Stated Maturity or any Redemption Date
as contemplated by Section 402, as the case may be;
or
(iii) the Company has deposited or caused to
be deposited with the Trustee such combination of
trust funds or obligations in trust pursuant to (i)
and (ii) above, respectively, as will, in a written
opinion of independent public accountants delivered
to the Trustee, together with the predetermined and
certain income to accrue on such obligations in
trust, be sufficient to pay and discharge when due
the entire indebtedness on all such Outstanding
Securities of such series any related coupons for
principal (and premium if any) and interest to the
Stated Maturity or any Redemption Date as
contemplated by Section 402, as the case may be;
(2) such deposit will not result in a breach or
violation 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;
(3) 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 Securities of that series
shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 501(6) or
Section 501(7) or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under
Section 501(6) or Section 501(7) shall have occurred and be
continuing on the 91st day after such date; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the defeasance contemplated in the Section have been complied
with.
(b) Notwithstanding the satisfaction of the conditions set
forth in this Section 1009 with respect to all the Securities of any
series not payable in Dollars, upon the happening of any Conversion
Event the Company shall be obligated to make the payments in Dollars
required by Section 311(d) to the extent that the Trustee is unable to
convert any Foreign Currency or currency unit in its possession under
Section 1009(a) into the Dollar equivalent of such Foreign Currency or
currency unit, as the case may be. If, after the deposit referred to in
Section 1009(a) has been made, (x) the Holder of a Security is entitled
to, and does, elect pursuant to Section 311(b) to receive payment in a
currency or currency unit other than that in which the deposit under
Section 1009(a) was made, or (y) a Conversion Event occurs as
contemplated in Section 311(d), then the indebtedness represented by
such Security shall be fully discharged to the extent that the deposit
made with respect to such Security shall be converted into the currency
or currency unit in which such Security is payable. The Trustee shall
return to the Company any non-converted funds or securities in its
possession after such payments have been made.
All the obligations of the Company under this Indenture with
respect to the Securities of such series, other than with respect to
Section 801, Section 1005, and any other covenant not set forth herein
and specified pursuant to Section 301 to be applicable to the
Securities of such series and subject to this Section 1009, shall
remain in full force and effect. Anything in this Section 1009 to the
contrary notwithstanding, the Trustee for any series of Securities
shall deliver or pay to the Company, from time to time upon Company
Request, any money or Government Obligations held by it as provided in
this Section 1009 which, as expressed in a written opinion of
independent public accountants delivered to such Trustee, are in excess
of the amount thereof which would have been required to be deposited
for the purpose for which such money or Government Obligations were
deposited or received, provided such delivery can be made without
liquidating any Government Obligations."
1.31 Amendment to Section 1402 of the Indenture. Section 1402
of the Indenture is hereby amended by deleting Section 1402 in its entirety and
inserting in lieu thereof the following:
"In the event (a) of any insolvency or bankruptcy proceedings
or any receivership, liquidation, reorganization or other similar
proceedings in respect of the Company or a substantial part of its
property, or of any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy, or (b) subject to the provisions of Section 1403, that (i)
a default shall have occurred with respect to the payment of principal
of or interest on or other monetary amounts due and payable on any
Senior Debt, or (ii) there shall have occurred an event of default
(other than a default in the payment of principal or interest or other
monetary amounts due and payable) in respect of any Senior Debt, as
defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both), and such
event of default shall have continued beyond the period of grace, if
any, in respect thereof, and, in the cases of subclauses (i) and (ii)
of this clause (b), such default or event of default shall not have
been cured or waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest, if any, on the Securities of any
series shall have been declared due and payable pursuant to Section 502
and such declaration shall not have been rescinded and annulled as
provided in Section 502, then:
(1) the holders of all Senior Debt shall first be
paid the full amount of the Senior Debt in cash, before the
Holders of any of the Securities or related coupons are
entitled to receive any payment on account of the principal of
(and premium, if any) and interest on the Securities
including, without limitation, any payments made pursuant to
Article Eleven;
(2) any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities, to which the Holders of any of the Securities or
coupons or the Trustee would be entitled except for the
provisions of this Article shall be paid or delivered by the
person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Debt or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any of such Senior Debt may have been issued,
ratably according to the aggregate amounts remaining unpaid on
account of such Senior Debt held or represented by each, to
the extent necessary to make payment in full of all Senior
Debt remaining unpaid after giving effect to any concurrent
payment or distribution to the holders of such Senior Debt,
before any payment or distribution is made to the Holders of
the Securities or related coupons or to the Trustee under this
Indenture; and
(3) in the event that, notwithstanding the foregoing,
any payment by, or distribution of assets of, the Company of
any kind or character, whether in cash, property or
securities, in respect of principal of or interest on the
Securities or in connection with any repurchase by the Company
of the Securities, shall be received by the Trustee or the
Holders of any of the Securities of related coupons before all
Senior Debt is paid in full in cash, such payment or
distribution in respect of principal of or interest on the
Securities or in connection with any repurchase by the Company
of the Securities shall be paid over to the holders of such
Senior Debt or their representative or representatives or to
the trustee or trustees under any indenture under which any
instruments evidencing any such Senior Debt may have been
issued, ratably as aforesaid, for application to the payment
of all Senior Debt remaining unpaid until all such Senior Debt
shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to
the holders of such Senior Debt.
Notwithstanding the foregoing, at any time after the 91st day
following the date of deposit of cash or, in the case of Securities
payable only in Dollars, Government Obligations of the United States of
America pursuant to Section 401(a)(1)(B) (provided all other conditions
set out in such Section shall have been satisfied) the funds so
deposited and any interest thereon will not be subject to any rights of
holders of Senior Debt including, without limitation, those arising
under this Article.
The consolidation of the Company with, or the merger of the
Company into, any other corporation or the liquidation or dissolution
of the Company following the conveyance, transfer or lease of its
properties and assets substantially as an entirety to any Person upon
the terms and conditions provided in Article Eight shall not be deemed
a dissolution, winding up, liquidation or reorganization for the
purposes of this Section 1402 if such Person shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the
conditions stated in Article Eight. Nothing in this Section 1402 shall
apply to claims of, or payments to, the Trustee under or pursuant to
Section 607.
The Company shall give prompt written notice to the Trustee of
any insolvency or bankruptcy proceedings or any receivership,
liquidation, reorganization or similar proceedings in respect of the
Company or a substantial part of its property or of any proceedings for
liquidation, dissolution or winding up of the Company. Upon any payment
or distribution of assets of the Company in connection with any such
proceeding, the Trustee and the Holders of the Securities and any
related coupons shall be entitled to rely upon a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, agent or other
person making such payment or distribution, delivered to the Trustee or
to the Holders of the Securities and any related coupons, 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."
1.32 Amendment to Section 1403 of the Indenture. Section 1403
of the Indenture is hereby amended by deleting Section 1403 in its entirety and
inserting in lieu thereof the following:
"SECTION 1403. Disputes with Holders of Certain Senior Debt.
Any failure by the Company to make any payment on or perform
any other obligation under Senior Debt, other than any indebtedness
incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any indebtedness or
obligation as to which the provisions of this Section 1403 shall have
been waived by the Company in the instrument or instruments by which
the Company incurred, assumed, guaranteed or otherwise created such
indebtedness or obligation, shall not be deemed a default or event of
default under clause (b) of the first paragraph of Section 1402 if (i)
the Company shall be disputing its obligation to make such payment or
perform such obligation and (ii) either (A) no final judgment relating
to such dispute shall have been issued against the Company which is in
full force and effect and is not subject to further review, including a
judgment that has become final by reason of the expiration of the time
within which a party may seek further appeal or review, and (B) in the
event a judgment that is subject to further review or appeal has been
issued, the Company shall in good faith be prosecuting an appeal or
other proceeding for review and a stay of execution shall have been
obtained pending such appeal or review."
1.33 Amendment to Section 1404 of the Indenture. Section 1404
of the Indenture is hereby amended by (a) capitalizing the letter "s" of the
word "subrogated" in the heading and (b) adding immediately after the word
"subrogated" in the second line the following:
"(equally and ratably with the holders of all obligations of the
Company which by their express terms are subordinated to Senior Debt of
the Company to the same extent as the Securities and related coupons
are subordinated and which are entitled to like rights of
subrogation)".
1.34 Amendment to Section 1405 of the Indenture. Section 1405
of the Indenture is hereby amended by (a) adding the phrase "or related coupon"
after the word "Security" in the second line, (b) deleting the phrase "such
dissolution, winding up, liquidation or reorganization" in the eighth line from
the end of the paragraph and (c) adding the word "therefor" after the word
"proceedings" in the seventh and eighth lines from the end of the paragraph.
1.35 Amendment to the Section 1406 of the Indenture. Section
1406 of the Indenture is hereby amended by (a) adding after the word "facts" in
the second line the following:
"(other than the fact that the principal of (and premium, if any) or
interest, if any, on the Securities of any series shall have been
declared due and payable pursuant to Section 502)"
, (b) deleting the phrase "from one or more holders of Senior Debt or from any
trustee therefor" and inserting in lieu thereof the following:
", any Holder of any Security or related coupon or any paying agent or
holder or representative of any class of Senior Debt"
, (c) deleting the last sentence in its entirety and inserting in lieu thereof
the following:
"The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing such Person to be a holder of
Senior Debt (or a trustee or representative on behalf of such Holder)
to establish that such notice has been given by a holder of Senior Debt
or a trustee or representative on behalf of any such holder or holders.
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 payment or distribution
pursuant to this Article, 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, the extent to which such
Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this
Article, and, if such evidence is not furnished, the Trustee may defer
payment to such Person pending judicial determination as to the right
of such Person to receive such payment."
and (d) adding a new paragraph at the end thereof, as follows:
"If any holder of Senior Debt shall have notified the Trustee in
writing of such holder's desire to receive notice of any of the
following events and shall have provided the Trustee with an address
for receipt of such notices, the Trustee shall send notice of the
following events to such holder immediately upon the Trustee's
acquisition of knowledge of any such events: (i) the occurrence of an
Event of Default hereunder, (ii) the acceleration of the entire
principal amount of any series of Securities, (iii) the execution of
any amendment or supplement to the Indenture, or (iv) the resignation
or removal of the Trustee or any change in the notice address of the
Trustee."
1.36 Amendment to Exhibits. Exhibits A, B, C and D of the
Indenture are hereby amended by deleting such exhibits in their entirety and
inserting in lieu thereof Exhibits A and B attached hereto.
1.37 Amendment to Table of Contents. The table of contents to
the Indenture is amended to reflect the additions and deletions described in
this First Supplemental Indenture.
SECTION 2. MISCELLANEOUS
2.1 Separability. In case any provision in this First
Supplemental Indenture 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.
<PAGE>
II.2 No Third Party Benefits. Nothing in this First
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto and their successors under the Indenture, and the Holders of
the Securities, any benefit or any legal or equitable right, remedy or claim
under the Indenture.
II.3 Continuance of Indenture. This First Supplemental
Indenture supplements the Indenture and shall be a part of and subject to all
the terms thereof. The Indenture, as supplemented by this First Supplemental
Indenture, shall continue in full force and effect.
II.4 The Trustee. The Trustee shall not be responsible in any
manner for or in respect of the validity or sufficiency of this First
Supplemental Indenture, or for or in respect of the recitals contained herein,
all of which recitals are made by the Company solely.
II.5 Governing Law. This First Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State of
New York.
II.6 Defined Terms. All capitalized terms used in this First
Supplemental Indenture which are defined in the Indenture but not otherwise
defined herein shall have the same meanings assigned to them in the Indenture.
II.7 Counterparts. This First Supplemental Indenture amy be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Chemical Bank hereby accepts the trusts in this First
Supplemental Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, Lehman Brothers Holdings Inc. has caused
this First Supplemental Indenture to be signed, and acknowledged by its
President, its Chairman of the Board, one of its Vice Presidents, its Chief
Financial Officer or its Treasurer, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary, its Assistant Secretary
or one of its Attesting Secretaries, and Chemical Bank, as Trustee, has caused
this First Supplemental Indenture to be signed and acknowledged by one of its
authorized officers, and its corporate seal to be affixed hereunto, and the same
to be attested by one of its authorized officers, as of the day and year first
above written.
LEHMAN BROTHERS HOLDINGS INC.
By:___________________________
[Corporate Seal]
Attest:
- ---------------------------
CHEMICAL BANK, as Trustee
By:___________________________
[Corporate Seal]
Attest:
- ----------------------------
<PAGE>
Exhibit A
CERTIFICATE
FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY
[Insert Title or Sufficient Description of
Securities to be Delivered]
(the "Securities")
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States persons"), (ii) are owned by United States person(s) that
(a) are foreign branches of a United States financial institution (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) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
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, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is to further certify
that such financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $_________
of such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in
connection with certain tax laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Date: _____________, 19__ 1/
By: ______________________________
As, or as agent for
the beneficial owner(s)
of the Securities to
which this certificate relates
___________________________
1/ Not earlier than 15 days prior to the Exchange Date or Interest Payment Date
to which the certification relates
<PAGE>
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR CEDEL
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of the above-captioned Securities as of the date
hereof, [___________________] principal amount of these Securities (i) is owned
by persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that (a) are
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) acquired the Securities
through foreign branches of United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution has agreed, on its own behalf or through its agent, that we may
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, as amended, and the regulations thereunder), 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)), and to the further effect that United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) any portion of the temporary global security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our member organizations to the effect that the
statements made by such member organizations with respect to any such portion of
the part submitted herewith for exchange (or, if relevant, exercise of any
rights or collection of any interest) are no longer true and cannot be relied
upon as the date hereof.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We understand that this certification is required in
connection with certain tax laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Date: __________________, 19__ 2/
[CEDEL S.A.]
By:______________________
____________________________
2/ Not earlier than the relevant Exchange Date or Interest Payment Date to which
the certification relates.
<PAGE>
LEHMAN BROTHERS HOLDINGS INC.
AND
CHEMICAL BANK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 1, 1996
