<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 22, 1998
REGISTRATION NO. 333-51201
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------------
TRAVELERS GROUP INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 52-1568099
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
</TABLE>
------------------------
388 GREENWICH STREET
NEW YORK, NEW YORK 10013
(212) 816-8000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------------
STEPHANIE B. MUDICK, ESQ.
DEPUTY GENERAL COUNSEL
TRAVELERS GROUP INC.
388 GREENWICH STREET
NEW YORK, NEW YORK 10013
(212) 816-8000
(Name, address, including zip code, and telephone number, including
area code, of agent for service for registrant)
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of the registration statement, as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
Pursuant to Rule 429, the Prospectus contained in this Registration
Statement will also be used in connection with the offering of up to
$450,000,000 principal amount of Debt Securities previously registered pursuant
to the Company's Registration Statement No. 33-63663 and not issued. In the
event any such previously registered Debt Securities are offered prior to the
effective date of this Registration Statement, they will not be included in any
Prospectus hereunder.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses payable by the Company
in connection with the Securities being registered hereby. All of the fees set
forth below are estimates except for the Commission registration fee and the
NASD fee.
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<S> <C>
Securities and Exchange Commission Filing Fee............... $ 457,250
NASD Filing Fee............................................. 30,500
Rating Agency Fees.......................................... 400,000
Blue Sky Fees and Expenses.................................. 5,000
Trustees' Fees and Expenses................................. 5,000
Printing Fees and Expenses.................................. 150,000
Accounting Fees and Expenses................................ 100,000
Legal Fees and Expenses..................................... 50,000
Miscellaneous............................................... 2,250
----------
Total................................................. $1,200,000
----------
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the Delaware General Corporation Law
("DGCL") empowers a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section
145, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of
II-1
<PAGE>
any other rights to which the indemnified party may be entitled; that
indemnification provided for by Section 145 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators; and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liabilities under
Section 145. Section Three of Article V of the Company's By-Laws provides that
the Company shall indemnify its directors and officers to the fullest extent
permitted by the DGCL.
The Company also provides liability insurance for its directors and officers
which provides for coverage against loss from claims made against directors and
officers in their capacity as such, including, subject to certain exceptions,
liabilities under the federal securities laws. In certain employment agreements,
the Company or its subsidiaries have also agreed to indemnify certain officers
against loss from claims made against such officers in connection with the
performance of their duties under their employment agreements. Such
indemnification is generally to the same extent as provided in the Company's
By-laws.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director provided that such provision shall not eliminate
or limit the liability of a director (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts of omissions
not in good faith or which involve international misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article Tenth of the Company's Restated Certificate of Incorporation limits the
liability of directors to the fullest extent permitted by Section 102(b)(7).
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS.
(a) Exhibits
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EXHIBIT
NUMBER DESCRIPTION
- --------- ----------------------------------------------------------------------------------------------------------
<C> <S>
1.01 Underwriting Agreement Basic Provisions, dated January 12, 1993, incorporated by reference to Exhibit 1.01
to Amendment No. 1 to the Company's Registration Statement on Form S-3 (No. 33-55542).
4.01 Indenture, dated as of March 15, 1987, between Primerica Corporation, a New Jersey corporation ("old
Primerica") and The Bank of New York, as Trustee (the "Trustee"), incorporated by reference to Exhibit
4.01 to the Company's Registration Statement on Form S-3 (No. 33-55542).
4.02 First Supplemental Indenture, dated as of December 15, 1988, among old Primerica, Primerica Holdings, Inc.
("Primerica Holdings") and the Trustee, incorporated by reference to Exhibit 4.02 to the Company's
Registration Statement on Form S-3 (No. 33-55542)
4.03 Second Supplemental Indenture, dated as of January 31, 1991, between Primerica Holdings and the Trustee,
incorporated by reference to Exhibit 4.03 to the Company's Registration Statement on Form S-3 (No.
33-55542).
4.04 Third Supplemental Indenture, dated as of December 9, 1992, among Primerica Holdings, Primerica
Corporation and the Trustee, incorporated by reference to Exhibit 5 to the Company's Form 8-A dated
December 21, 1992, with respect to the Company's 7 3/4% Notes Due June 15, 1999 (File No. 1-9924).
4.05 Indenture, dated as of July 17, 1998, between Travelers Group Inc. and The First National Bank of Chicago,
as trustee.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- ----------------------------------------------------------------------------------------------------------
<C> <S>
5.01* Opinion of Stephanie B. Mudick, Deputy General Counsel of the Company, as to the legality of securities
being registered.
12.01 Computation of ratio of earnings to fixed charges, incorporated by reference to Exhibit 12.01 to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997 (File No. 1-9924).
23.01* Consent of KPMG Peat Marwick LLP, Independent Certified Public Accountants.
23.02* Consent of KPMG Peat Marwick LLP, Independent Certified Public Accountants.
23.03* Consent of Arthur Andersen LLP, Independent Certified Public Accountants.
23.04* Consent of Counsel (included in Exhibit 5.01).
24.01* Powers of Attorney of certain directors of the Company.
25.01 Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, Trustee, incorporated by reference to Exhibit 25.01 to the Company's Registration Statement on
Form S-3 (No. 33-63663).
25.02 Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, trustee.
</TABLE>
- ------------------------
* Previously filed.
ITEM 17. UNDERTAKING.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) that, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the Plan of
Distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by Travelers Group Inc. pursuant to Section 13 or Section
15(d) of the Exchange Act of 1934, as amended (the "Exchange Act") that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE>
The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of Travelers
Group Inc.'s Annual Report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the provisions referred to in Item 15 (other than the
insurance policies referred to therein), or otherwise, the Registrants have been
advised that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrants of expenses
incurred or paid by a director, officer or controlling person of the Registrants
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities
Act each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Travelers Group
Inc. hereby certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, this 21st day of July, 1998.
TRAVELERS GROUP INC.
By /s/ SANFORD I. WEILL
-----------------------------------------
Sanford I. Weill
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the following
persons in the capacities indicated on this 21st day of July, 1998.
SIGNATURE TITLE
- ------------------------------ --------------------------
Chairman of the Board,
/s/ SANFORD I. WEILL Chief Executive Officer
- ------------------------------ (Principal Executive
Sanford I. Weill Officer) and Director
Senior Vice President and
/s/ HEIDI G. MILLER Chief Financial Officer
- ------------------------------ (Principal Financial
Heidi G. Miller Officer)
Executive Vice President
/s/ IRWIN ETTINGER and Chief Accounting
- ------------------------------ Officer (Principal
Irwin Ettinger Accounting Officer)
- ------------------------------ Director
C. Michael Armstrong
*
- ------------------------------ Director
Judith Arron
*
- ------------------------------ Director
Kenneth J. Bialkin
*
- ------------------------------ Director
Joseph A. Califano, Jr.
/s/ JAMES DIMON
- ------------------------------ Director
James Dimon
*
- ------------------------------ Director
Leslie B. Disharoon
*
- ------------------------------ Director
Gerald R. Ford
II-5
<PAGE>
SIGNATURE TITLE
- ------------------------------ --------------------------
*
- ------------------------------ Director
Thomas W. Jones
*
- ------------------------------ Director
Ann D. Jordan
*
- ------------------------------ Director
Robert I. Lipp
*
- ------------------------------ Director
Michael Masin
*
- ------------------------------ Director
Deryck C. Maughan
*
- ------------------------------ Director
Dudley C. Mecum
*
- ------------------------------ Director
Andrall E. Pearson
*
- ------------------------------ Director
Frank J. Tasco
*
- ------------------------------ Director
Linda J. Wachner
*
- ------------------------------ Director
Joseph R. Wright, Jr.
*
- ------------------------------ Director
Arthur Zankel
*By: /s/ JAMES DIMON
-------------------------
James Dimon
ATTORNEY-IN-FACT
II-6
<PAGE>
INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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1.01 Underwriting Agreement Basic Provisions, dated January 12, 1993, incorporated by reference to Exhibit 1.01
to Amendment No. 1 to the Company's Registration Statement on Form S-3 (No. 33-55542).
4.01 Indenture, dated as of March 15, 1987, between Primerica Corporation, a New Jersey corporation ("old
Primerica") and The Bank of New York, as Trustee (the "Trustee"), incorporated by reference to Exhibit
4.01 to the Company's Registration Statement on Form S-3 (No. 33-55542).
4.02 First Supplemental Indenture, dated as of December 15, 1988, among old Primerica, Primerica Holdings, Inc.
("Primerica Holdings") and the Trustee, incorporated by reference to Exhibit 4.02 to the Company's
Registration Statement on Form S-3 (No. 33-55542)
4.03 Second Supplemental Indenture, dated as of January 31, 1991, between Primerica Holdings and the Trustee,
incorporated by reference to Exhibit 4.03 to the Company's Registration Statement on Form S-3 (No.
33-55542).
4.04 Third Supplemental Indenture, dated as of December 9, 1992, among Primerica Holdings, Primerica
Corporation and the Trustee, incorporated by reference to Exhibit 5 to the Company's Form 8-A dated
December 21, 1992, with respect to the Company's 7 3/4% Notes Due June 15, 1999 (File No. 1-9924).
4.05 Indenture, dated as of July 17, 1998, between Travelers Group Inc. and The First National Bank of Chicago,
as trustee.
5.01* Opinion of Stephanie B. Mudick, Deputy General Counsel of the Company, as to the legality of securities
being registered.
12.01 Computation of ratio of earnings to fixed charges, incorporated by reference to Exhibit 12.01 to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997 (File No. 1-9924).
23.01* Consent of KPMG Peat Marwick LLP, Independent Certified Public Accountants.
23.02* Consent of KPMG Peat Marwick LLP, Independent Certified Public Accountants.
23.03* Consent of Arthur Andersen LLP, Independent Certified Public Accountants.
23.04* Consent of Counsel (included in Exhibit 5.01).
24.01* Powers of Attorney of certain directors of the Company.
25.01 Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, Trustee, incorporated by reference to Exhibit 25.01 to the Company's Registration Statement on
Form S-3 (No. 33-63663).
25.02 Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The First
National Bank of Chicago, trustee.
</TABLE>
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* Previously filed.
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TRAVELERS GROUP INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
---------------
Indenture
Dated as of July 17 , 1998
---------------
Providing for the Issuance of Subordinated Debt Securities
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<PAGE>
This Cross Reference Sheet, showing the location in the Indenture of the
provisions inserted pursuant to Section 310-318(a), inclusive, of the Trust
Indenture Act of 1939, as amended, is not to be considered a part of the
Indenture.
TRUST INDENTURE ACT CROSS-REFERENCE SHEET
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Sections of Trust Indenture Act Sections of Indenture
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310(a)(1) 10.05
310(a)(2) 10.05
310(a)(3) Not applicable
310(a)(4) Not applicable
310(a)(5) 10.05
310(b) 10.06
310(c) Not applicable
311 10.09
312 9.03
313 9.01
314(a) 5.06 and 9.02
314(b) Not applicable
314(c) 14.03
314(d) Not applicable
314(e) 14.03
315(a) 10.02
315(b) 10.03
315(c) 10.02
315(d) 10.02
315(e) 6.08
316(a) 6.06 and 7.03
316(b) 6.07
316(c) 13.02
317(a) 6.03 and 6.04
317(b) 5.03
318(a) 14.05
</TABLE>
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TABLE OF CONTENTS
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PARTIES................................................................................................... 1
RECITAL:
Authority of the Company to borrow money and issue obligations........................ 1
Corporate action taken to authorize issue of Securities............................... 1
Corporate action taken to authorize execution of Indenture............................ 1
ARTICLE ONE
DEFINITIONS
Section 1.01 Terms unless otherwise defined, to have meanings assigned in Trust in
Indenture Act of 1939................................................................. 2
Section 1.02. Definitions:
Affiliate............................................................................. 2
Board Resolution...................................................................... 2
Business day.......................................................................... 2
Company............................................................................... 3
Corporate Trust Office................................................................ 3
Covenant Defeasance................................................................... 3
Defeasance............................................................................ 3
Depositary............................................................................ 3
Event of default...................................................................... 3
Global Security....................................................................... 3
Indebtedness.......................................................................... 4
Indenture............................................................................. 4
Interest.............................................................................. 4
Interest Payment Date................................................................. 4
Junior Subordinated Debt.............................................................. 4
Junior Subordinated Debt Indenture.................................................... 4
Mandatory Sinking Fund Payment........................................................ 4
Maturity.............................................................................. 5
Officers' Certificate................................................................. 5
Opinion of Counsel.................................................................... 5
Optional Sinking Fund Payment......................................................... 5
Original Issue Discount Security...................................................... 5
Outstanding........................................................................... 5
Person................................................................................ 6
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Record Date........................................................................... 6
Redemption Date....................................................................... 6
Redemption Price...................................................................... 7
Responsible Officers.................................................................. 7
Security.............................................................................. 7
Securityholder; holder of Securities; holder; registered holder....................... 7
Senior Indebtedness................................................................... 7
Stated Maturity....................................................................... 8
Subsidiary............................................................................ 8
Trustee............................................................................... 8
Trust Indenture Act of 1939........................................................... 8
Trust Preferred Securities Guarantees................................................. 8
U.S. Government Obligations........................................................... 9
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER, AND EXCHANGE OF SECURITIES
SECTION 2.01 Forms generally; Global Securities.................................................... 9
Denominations of Securities........................................................... 9
Record Dates.......................................................................... 10
Place of payment of Securities and currency of payment................................ 10
SECTION 2.02 Amount; terms of series............................................................... 10
SECTION 2.03 Certificate of authentication necessary to make Securities valid...................... 12
SECTION 2.04 Form of certificate of authentication................................................. 13
SECTION 2.05 The Company to maintain register at office or agency in New York...................... 13
Registration of transfer of Securities................................................ 13
Exchange of Securities................................................................ 13
Payment in connection with registration of transfer or exchange of Securities......... 14
Persons who may be treated as owners of Securities.................................... 14
SECTION 2.06 Replacing Securities mutilated, destroyed, lost or stolen............................. 14
ii
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SECTION 2.07 Rights to interest accrued and unpaid, and to accrue, on Securities delivered
in exchange or substitution for other Securities...................................... 15
SECTION 2.08 Temporary Securities.................................................................. 15
SECTION 2.09 Transfer and Exchange of Global Securities............................................ 15
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01 Authentication, delivery and dating................................................... 16
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01 Applicability of right of redemption.................................................. 18
SECTION 4.02 Notice of redemption.................................................................. 18
Interest to cease after Redemption Date............................................... 19
Selection of Securities on partial redemption......................................... 19
SECTION 4.03 Applicability of sinking fund......................................................... 19
SECTION 4.04 Mandatory sinking fund obligation..................................................... 20
SECTION 4.05 Optional redemption at sinking fund redemption price.................................. 20
SECTION 4.06 Application of sinking fund payments.................................................. 20
ARTICLE FIVE
COVENANTS OF THE COMPANY
SECTION 5.01 To pay principal, premium, if any, and interest....................................... 22
SECTION 5.02 To maintain office or agency in New York.............................................. 22
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SECTION 5.03 The Company, or paying agent, to hold in trust moneys for payment of
principal, premium, if any, and interest.............................................. 22
SECTION 5.04 Restrictions on consolidation, merger and sale........................................ 23
SECTION 5.05 Annual statement concerning compliance with covenants................................. 24
SECTION 5.06 Compliance with covenants and conditions may be waived by holders of
Securities............................................................................ 24
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01 Events of default..................................................................... 24
SECTION 6.02 Acceleration of maturity of principal on default...................................... 26
Waiver of acceleration of maturity.................................................... 26
SECTION 6.03 The Company, failing for 30 days to pay any installment of interest or
sinking fund payment or failing to pay principal when due, will pay to
Trustee at its request whole amount due............................................... 27
Upon failure to pay, Trustee may recover judgment for ratable benefit of
Securityholders....................................................................... 27
SECTION 6.04 Trustee appointed attorney-in-fact for Securityholders to file claims................. 27
SECTION 6.05 Application of moneys collected by Trustee............................................ 28
SECTION 6.06 Securityholders may direct proceedings and waive defaults............................. 29
SECTION 6.07 Limitations on right of Securityholders to institute proceedings...................... 29
SECTION 6.08 Assessment of costs and attorneys' fees in legal proceedings.......................... 30
SECTION 6.09 Remedies cumulative................................................................... 30
SECTION 6.10 Waiver of stay or extension laws...................................................... 31
iv
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01 Evidence of action by Securityholders................................................. 31
SECTION 7.02 Proof of execution of instrument and of holding of Securities......................... 31
SECTION 7.03 Securities owned by the Company or other obligor on the Securities to be
disregarded in certain cases.......................................................... 32
SECTION 7.04 Revocation by Securityholders of consents to action................................... 32
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01 Purposes of meetings.................................................................. 33
SECTION 8.02 Call of meetings by Trustee........................................................... 33
SECTION 8.03 Call of meetings by Company or Securityholders........................................ 33
SECTION 8.04 Qualifications for voting............................................................. 34
SECTION 8.05 Regulations for meetings.............................................................. 34
SECTION 8.06 Voting................................................................................ 34
SECTION 8.07 No delay of rights by meeting......................................................... 35
ARTICLE NINE
REPORTS BY THE COMPANY AND THE
TRUSTEE AND SECURITYHOLDERS LISTS
SECTION 9.01 Reports by Trustee.................................................................... 35
(a) annual report to Securityholders................................................. 35
(b) special report to Securityholders................................................ 35
v
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(c) extent and manner of transmitting reports........................................ 35
(d) copies to be filed with Securities and Exchange
Commission and with
stock exchanges.................................................................. 35
SECTION 9.02 Reports by the Company................................................................ 36
(a) reports and information to be filed with Trustee................................. 36
(b) additional information to be filed with Trustee and Securities and
Exchange Commission.............................................................. 36
(c) reports to Securityholders....................................................... 36
SECTION 9.03 Securityholders lists................................................................. 36
(a) Company to furnish Trustee with names and addresses of Securityholders........... 36
(b) Trustee to preserve information.................................................. 37
(c) Trustee to furnish certain information to Securityholders on request............. 37
--or in lieu thereof to mail communications to Securityholders................... 37
--unless statement filed by Trustee with Securities and Exchange
Commission..................................................................... 37
--hearing and order by Securities and Exchange Commission........................ 37
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01 Acceptance of trusts upon specified conditions........................................ 38
(a) Trustee entitled to compensation and expenses.................................... 38
(b) Trustee may act by agents and attorneys.......................................... 39
(c) Trustee not responsible for recitals of fact..................................... 39
(d) Trustee may consult with counsel................................................. 39
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(e) Trustee may rely upon certificate as to adoption of resolutions; requests
may be evidenced by Officers' Certificate........................................ 39
(f) Trustee may become owner or pledgee of Securities................................ 39
(g) segregation of funds............................................................. 39
(h) action at request of or with consent of Securityholder binding on future
holders.......................................................................... 39
(i) Trustee may rely on instruments believed by it to be genuine..................... 40
(j) Trustee need not exercise rights or powers unless
indemnified by Securityholders................................................... 40
(k) Trustee not liable for action taken or omitted in good faith..................... 40
(l) Trustee not bound to make investigation.......................................... 40
(m) Trustee not deemed to have knowledge of default.................................. 40
SECTION 10.02 Duties of Trustee in case of default.................................................. 40
Trustee to use same degree of care as prudent person would use........................ 40
Trustee not to be relieved from liability for negligence or
willful misconduct except:
(a) when no default continuing....................................................... 40
(1) Trustee liable only for performance of duties specifically set forth........ 41
(2) Trustee may conclusively rely upon opinions, certificates and
statements furnished to it pursuant to Indenture............................ 41
(b) Trustee not liable for error of judgment made in good
faith by Responsible Officer..................................................... 41
(c) Trustee not liable for certain action or non-action at direction of
holders of majority of Securities................................................ 41
--Trustee not required to expend own funds if repayment not reasonably
assured........................................................................ 41
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SECTION 10.03 Notice to Securityholders of defaults................................................. 41
SECTION 10.04 Resignation of Trustee and notice thereof............................................. 42
Removal of Trustee.................................................................... 42
SECTION 10.05 Qualifications of Trustee............................................................. 42
SECTION 10.06 Disqualification of Trustee by reason of conflicting interest......................... 42
SECTION 10.07 Appointment of Trustee................................................................ 43
By Securityholders............................................................... 43
By the Company................................................................... 43
Notice of appointment other than by Securityholders.............................. 43
Appointment by a court................................................................ 43
Execution of instrument by successor Trustee, predecessor Trustee and
the Company........................................................................... 44
SECTION 10.08 Merger, conversion or consolidation of Trustee or transfer of its corporate
trust business; authentication of Securities by successor Trustee..................... 44
SECTION 10.09 Trustee required to account for amounts collected as creditor of the
Company under certain conditions...................................................... 45
SECTION 10.10 As to matters to be proved or established, Trustee may rely on Officers'
Certificate........................................................................... 45
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 11.01 Satisfaction and discharge of Indenture............................................... 45
SECTION 11.02 Defeasance and discharge.............................................................. 46
SECTION 11.03 Covenant Defeasance................................................................... 47
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SECTION 11.04 Conditions to Defeasance or Covenant Defeasance....................................... 47
SECTION 11.05 Application of trust money............................................................ 48
SECTION 11.06 Indemnity for U.S. Government Obligations............................................. 49
SECTION 11.07 Deposits of non-U.S. currencies....................................................... 49
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Liability solely corporate............................................................ 49
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01 Without consent of Securityholders, the Company and Trustee may enter
into supplemental indentures for specified purposes................................... 50
SECTION 13.02 Modification of Indenture by supplemental indenture with consent of
Securityholders....................................................................... 51
SECTION 13.03 Execution of supplemental indenture................................................... 52
SECTION 13.04 Effect of supplemental indenture...................................................... 52
SECTION 13.05 Matters provided for in supplemental indenture may be noted on
Securities, or new Securities appropriately modified may be issued
in exchange for outstanding Securities................................................ 52
SECTION 13.06 Supplemental indenture to conform to Trust Indenture Act of 1939...................... 52
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01 Securities subordinate to Senior Indebtedness......................................... 53
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SECTION 14.02 Trustee and holders of Securities may rely on certificate of liquidating
agent; Trustee may require further evidence as to ownership of Senior
Indebtedness.......................................................................... 55
SECTION 14.03 Payment permitted if no default....................................................... 56
SECTION 14.04 Trustee not charged with knowledge of facts prohibiting payment....................... 56
SECTION 14.05 Trustee to effectuate subordination................................................... 57
SECTION 14.06 Trustee's rights regarding Senior Indebtedness........................................ 57
SECTION 14.07 Articles applicable to paying agent................................................... 57
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01 Consolidation, merger, sale or lease.................................................. 57
SECTION 15.02 Rights under indenture confined to parties and holders of Securities.................. 58
SECTION 15.03 Evidence of compliance with conditions precedent...................................... 58
As evidence of compliance, Officers' Certificate and Opinion of Counsel
to be furnished to Trustee............................................................ 58
Contents of certificates and opinions................................................. 58
Trustee may examine books and records of the Company.................................. 58
SECTION 15.04 Cancellation of Securities............................................................ 59
SECTION 15.05 Provisions required by Trust Indenture Act of 1939 to control......................... 59
SECTION 15.06 Action of authorized committee deemed to be action of Board of
Directors............................................................................. 59
SECTION 15.07 Notices............................................................................... 59
SECTION 15.08 Payments due on non-business days..................................................... 60
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SECTION 15.09 Execution in counterparts............................................................. 60
SECTION 15.10 Indenture deemed a New York contract.................................................. 60
TESTIMONIUM ...................................................................................... 61
SIGNATURE AND SEALS ...................................................................................... 61
ACKNOWLEDGMENTS ...................................................................................... 62-3
</TABLE>
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INDENTURE dated as of July 17, 1998, between TRAVELERS GROUP INC., a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), and THE FIRST NATIONAL BANK OF CHICAGO, a
banking association organized and existing under the laws of the United States,
as trustee (hereinafter called the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company is authorized and empowered to borrow money for its
corporate purposes and to issue its bonds, debentures, notes and other
obligations for money so borrowed; and
WHEREAS, the Company has duly authorized the issue, in one or more series
as in this Indenture provided, from time to time of its debt securities
(hereinafter called the "Securities") and, to provide the general terms and
conditions upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this
Indenture;
WHEREAS, the Trustee has power to enter into this Indenture and to accept
and execute the trusts herein created;
WHEREAS, the Company represents that all acts and things necessary to make
the Securities, when executed by the Company and authenticated and delivered by
the Trustee as in this Indenture provided, and issued, the valid, binding and
legal obligations of the Company, will, at the time of such execution,
authentication and delivery, have been done and performed, that all acts and
things necessary to constitute these presents a valid indenture and agreement
according to its terms, have been done and performed, that the execution of this
Indenture has in all respects been duly authorized and that the issue hereunder
of the Securities will, at the time of the issue thereof, have in all respects
been duly authorized, and the Company, in the exercise of each and every legal
right and power in it vested, executes this Indenture and proposes to make,
execute, issue and deliver the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the acceptance and purchase
of the Securities by the holders thereof, the Company covenants and agrees with
the Trustee, for the equal benefit of all the holders from time to time of the
Securities, without preference, priority or distinction of any thereof over any
other thereof by reason of priority in time of issuance or negotiation, or
otherwise, as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Unless otherwise defined in this Indenture or the context
otherwise requires, all terms used herein shall have the meanings assigned to
them in the Trust Indenture Act of 1939.
SECTION 1.02. Unless the context otherwise requires, the terms defined in
this Section 1.02 shall for all purposes of this Indenture and of any indenture
supplemental hereto have the meanings hereinafter set forth, the following
definitions to be equally applicable to both the singular and the plural forms
of any of the terms herein defined:
Affiliate:
The term "Affiliate" means, with respect to any Person, any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Board Resolution:
The term "Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or by the Finance Committee of the Board
of Directors or any other committee of the Board of Directors or committee of
officers or other representatives of the Company, to the extent that any such
other committee or committees have been authorized by the Board of Directors to
establish or approve the matters contemplated by Section 2.02 hereof) and to be
in full force and effect on the date of such certification, and delivered to the
Trustee.
Business day:
The term "business day," when used with respect to any place of payment or
any other particular location referred to in this Indenture or in the
Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that place of payment or other
location are authorized or obligated by law to close.
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Company:
The term "Company" shall mean Travelers Group Inc. and, subject to the
provisions of Section 15.01, shall also include its successors and assigns.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126, Attn.:
Corporate Trust Services Division, except that for purposes of Section 5.02,
such term shall mean the office or agency of the Trustee in the Borough of
Manhattan, the City of New York, which office at the date hereof is located at
First Chicago Trust Company of New York, 14 Wall Street, Eighth Floor, New York,
New York 10005.
Covenant Defeasance:
The term "Covenant Defeasance" shall have the meaning specified in Section
11.02.
Defeasance:
The term "Defeasance" shall have the meaning specified in Section 11.03.
Depositary:
The term "Depositary" shall mean, with respect to the Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation that is
designated to act as Depositary for such Securities as contemplated by Section
2.02.
Event of default:
The term "event of default" shall have the meaning specified in Section
6.01.
Global Security:
The term "Global Security" means a Security issued to evidence all or a
part of any series of Securities and designated as a Global Security.
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Indebtedness:
The term "Indebtedness" shall mean any and all obligations of a corporation
for money borrowed which in accordance with generally accepted accounting
principles would be reflected on the balance sheet of such corporation as a
liability on the date as of which Indebtedness is to be determined.
Indenture:
The term "Indenture" or "this Indenture" shall mean this instrument and all
indentures supplemental hereto, including the terms of the Securities.
Interest:
The term "interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any Security
shall mean the Stated Maturity of an installment of interest on such Security.
Junior Subordinated Debt:
The term "Junior Subordinated Debt" shall mean the 6.850% Junior
Subordinated Deferrable Interest Debentures due January 22, 2038 of the Company,
the 7 5/8% Junior Subordinated Deferrable Interest Debentures due December 1,
2036 of the Company, the 7 3/4% Junior Subordinated Deferrable Interest
Debentures due December 1, 2036 of the Company and the 8% Deferrable Interest
Debentures due September 30, 2036 of the Company, all other notes or other
obligations which may be issued under the Junior Subordinated Debt Indenture and
any indebtedness that is by its terms subordinated to or pari passu with the
Junior Subordinated Debt.
Junior Subordinated Debt Indenture:
The term "Junior Subordinated Debt Indenture" shall mean the Indenture,
dated October 7, 1996, between the Company and The Chase Manhattan Bank, as
trustee, as the same may be amended from time to time.
Mandatory Sinking Fund Payment:
The term "Mandatory Sinking Fund Payment" shall have the meaning specified
in Section 4.03.
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Maturity:
The term "maturity," with respect to any Security, shall mean the date on
which the principal of such Security shall become due and payable as therein and
herein provided, whether by declaration, call for redemption or otherwise.
Officers' Certificate:
The term "Officers' Certificate," when used with respect to the Company,
shall mean a certificate signed by the Chairman, any Vice Chairman, the
President or any Vice President and by the Treasurer, any Deputy Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 15.03 if and to the extent required by the provisions of
such Section.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of or of counsel to the Company, or may be
other counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 15.03 if and to the extent required by the
provisions of such Section.
Optional Sinking Fund Payment:
The term "Optional Sinking Fund Payment" shall have the meaning specified
in Section 4.03.
Original Issue Discount Security:
The term "Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.02.
Outstanding:
The term "outstanding," when used as of any particular time with reference
to Securities, shall, subject to Section 7.03, mean all the Securities which
shall theretofore have been authenticated and delivered by the Trustee under
this Indenture, except
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(a) Securities or portions thereof for which (i) funds sufficient to pay
the principal thereof, premium, if any, thereon and all unpaid interest thereon
to maturity or to the date fixed for the redemption thereof shall have been
deposited in trust for such purpose as provided herein with the Trustee or with
any paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own paying
agent), and (ii) in case of redemption, notice of redemption thereof shall have
been duly given or provision satisfactory to the Trustee for the giving of such
notice shall have been made;
(b) Securities which shall have been surrendered to the Trustee for
cancellation;
(c) Securities paid or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to Section 2.06;
and
(d) Securities or portions thereof as to which the Company shall have
deposited in trust funds or U.S. Government Obligations and complied with other
conditions as specified in Section 11.04;
provided, however, that in determining whether the holders of the requisite
principal amount of the Securities then outstanding have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.02.
Person:
The term "person" shall mean an individual, a corporation, a partnership,
an association, a joint stock company, a trust, an unincorporated organization
or a government or an agency or political subdivision thereof.
Record Date:
The term "Record Date" shall mean, with respect to any interest payable on
any Security on any interest payment date, the close of business on the date
specified in such Security or, in the case of defaulted interest, the close of
business on any subsequent record date established as provided in Section 2.01
(in each case whether or not such day is a business day).
Redemption Date:
The term "Redemption Date" when used with respect to any Security to be
redeemed, in whole or in part, shall mean the date fixed for such redemption by
or pursuant to this Indenture and the terms of such Security.
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Redemption Price:
The term "Redemption Price" when used with respect to any Security to be
redeemed shall mean the price (exclusive of accrued interest) at which it is to
be redeemed pursuant to this Indenture and the terms of such Security.
Responsible Officers:
"Responsible Officers" of the Trustee hereunder shall mean and include any
officer of the Trustee assigned by the Trustee to administer its corporate trust
matters.
Security:
The term "Security" shall mean one of the Securities duly authenticated by
the Trustee and delivered pursuant to the provisions of this Indenture.
Securityholder, holder of Securities; holder; registered holder:
The term "Securityholder" or "holder of Securities" or "holder" or
"registered holder," with respect to a Security, shall mean the person in whose
name such Securities shall be registered in the register kept for that purpose
hereunder.
Senior Indebtedness:
The term "Senior Indebtedness" shall mean (i) the principal, premium, if
any, and interest in respect of (A) indebtedness of the Company for money
borrowed and (B) indebtedness evidenced by securities, notes, debentures, bonds
or other similar instruments issued by the Company; (ii) all capital lease
obligations of the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any
conditional sale or title retention agreement (but excluding trade accounts
payable in the ordinary course of business); (iv) all obligations, contingent or
otherwise, of the Company in respect of any letters of credit, banker's
acceptance, security purchase facilities and similar credit transactions; (v)
all obligations of the Company in respect of interest rate swap, cap or other
agreements, interest rate future or options contracts, currency swap agreements,
currency future or option contract and other similar agreements; (vi) all
obligations of the type referred to in clauses (i) through (v) of other Persons
for the payment of which the Company is responsible or liable as obligor,
guarantor or otherwise; and (vii) all obligations of the type referred to in
clauses (i) through (vi) of other Persons secured by any lien on any property or
asset of the Company (whether or not such obligation is assumed by the Company),
except for (1) the Securities, (2) any such indebtedness that is by its terms
subordinated to or pari passu with the Securities, and (3) any indebtedness
between or among the Company and its Affiliates, including (x) any Junior
Subordinated Debt, (y) any Trust Preferred Securities Guarantees and (z) all
other debt securities and guarantees in respect of those debt securities issued
to any other trust, or a trustee of such trust, partnership or other entity
affiliated
7
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with the Company which is a financing vehicle of the Company (a "Financing
Entity") in connection with the issuance by such Financing Entity of preferred
securities or other securities which rank pari passu with, or junior to, the
Junior Subordinated Debt.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or any
installment of interest thereon shall mean the date specified in such Security
as the fixed date on which the principal (or any portion thereof) of or premium,
if any, on such Security or such installment of interest is due and payable.
Subsidiary:
The term "Subsidiary" shall mean any corporation of which securities
(excluding securities entitled to vote for directors only by reason of the
happening of a contingency) entitled to elect at least a majority of the
corporation's directors shall at the time be owned, directly or indirectly, by
the Company, or one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
Trustee:
The term "Trustee" shall mean the trustee hereunder for the time being,
whether original or successor, and if at any time there is more than one such
trustee, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to Securities of that series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean such Act as amended to
the date of this Indenture except as provided in Section 13.06.
Trust Preferred Securities Guarantees:
The term "Trust Preferred Securities Guarantees" shall mean the guarantees
issued by the Company in connection with the 8% Trust Preferred Securities of
Travelers Capital I, the 7 3/4% Trust Preferred Securities of Travelers Capital
II, the 7 5/8% Trust Preferred Securities of Travelers Capital III and the
6.850% Trust Preferred Securities of Travelers Capital IV and any guarantee now
or hereafter entered into by the Company in respect of any preferred or
preference stock that is by its terms subordinated to or pari passu with the
Junior Subordinated Debt.
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U.S. Government Obligations:
The term "U.S. Government Obligations" means either (i) direct obligations
of the United States of America or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act of 1939, are defined in
Article Ten.
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. The Securities of each series shall be issuable in registered
form and shall be in substantially the form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Securities may be listed, or to conform to
usage. The Securities (including temporary securities) of a series are issuable
in the form of a Global Security, any such Global Security may provide that it
shall represent the aggregate amount of outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount or changes in the rights of holders of
outstanding Securities represented thereby shall be made in such manner and by
such person or persons as shall be specified therein. Any instructions by the
Company with respect to a Global Security shall be in writing but need not
comply with Section 15.03.
The Securities shall be issued, except as otherwise provided with respect
to any series of Securities pursuant to Section 2.02, in the denomination of
$1,000 and any larger denomination which is an integral multiple of $1,000
approved by the Company, such approval to be evidenced by the execution thereof.
9
<PAGE>
The person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date;
provided, however, that, if and to the extent the Company shall default in the
payment of the interest due on such Interest Payment Date, the defaulted
interest shall be paid to the persons in whose names the outstanding Securities
are registered on a subsequent Record Date, such Record Date to be not less than
5 days prior to the date of payment of such defaulted interest, established by
notice given by mail by or on behalf of the Company to the holders of Securities
not less than 15 days preceding such subsequent Record Date.
At the option of the Company, interest on Securities and principal may be
paid by mailing a check to the address of the person entitled thereto as such
address shall appear in the register or by wire transfer to an account
maintained by the person entitled thereto as specified in the register.
Unless otherwise provided as contemplated by Section 2.02 with respect to
any series of Securities, the principal of and interest and premium, if any, on
the Securities shall be payable 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.
SECTION 2.02. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is not limited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(a) the title of the Securities of the series (which shall distinguish the
Securities of the series from the Securities of all other series, except to the
extent that additional Securities of an existing series are being issued);
(b) any limit upon the aggregate principal amount of the Securities of the
series which may be outstanding under this Indenture (except as otherwise
provided in Sections 2.06, 2.08 or 13.05);
(c) the date or dates on which the principal of the Securities of the
series is payable;
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(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Record Dates for the determination of
holders to whom interest is payable;
(e) if other than such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public or private debts,
the coin or currency or currency unit in which payment of the principal of, or
premium, if any, or interest on the Securities of the series shall be payable;
(f) if the amount of payment of principal of, or premium, if any, or
interest on the Securities of the series may be determined with reference to an
index, formula or other method including, but not limited to, an index, formula
or other method based on a coin or currency or currency unit other than that in
which the Securities are stated to be payable, the manner in which such amount
shall be determined;
(g) if the principal of, or premium, if any, or interest on the Securities
of the series are to be payable, at the election of the Company or a holder
thereof, in a coin or currency or currency unit other than that in which the
Securities are stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(h) the place or places where the principal of, and premium, if any, and
interest on Securities of the series shall be payable;
(i) the price or prices at which, the period or periods within which and
the terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the Company is to have that
option;
(j) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a holder thereof and the price or prices at which, the period
or periods within which and the terms and conditions upon which Securities of
the series shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(k) if other than denominations of $1,000 or any integral multiple thereof,
the denominations in which Securities of the series shall be issuable;
(1) whether the Securities of the series are to be issued as Original Issue
Discount Securities and the amount of discount with which such Securities may be
issued;
(m) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
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(n) the subordination terms of the Securities of the series (if different
from the terms provided herein);
(o) whether the Securities of the series are to be issued in whole or in
part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities and the terms and conditions,
if any, upon which such Global Security or Securities may be exchanged in whole
or in part for other definitive Securities;
(p) the date as of which any Global Security of the series shall be dated
if other than the original issuance of the first Security of the series to be
issued;
(q) the form of the Securities of the series;
(r) the provisions of this Indenture that shall not apply to Securities of
the series; and
(s) any other terms of the Securities of the series, including additional
events of default and/or covenants of the Company (which terms shall not be
inconsistent with the provisions of this Indenture).
All securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided by or pursuant to such
Board Resolution, and set forth in such Officers' Certificate, or in any such
indenture supplemental hereto. If any of the terms of a series of Securities are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
SECTION 2.03. The Securities shall be signed in the name and on behalf of
the Company by the manual or facsimile signature of its Chairman, any Vice
Chairman, its President or any Vice President, under its corporate seal (which
may be printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise), which shall be attested by the manual or facsimile signature of its
Secretary or one of its Assistant Secretaries. The Securities shall then be
delivered to the Trustee for authentication by it, and thereupon, as provided
herein, the Trustee shall authenticate and deliver such Securities. In case any
officer of the Company who shall have signed any of the Securities shall cease
to be such officer of the Company before the Securities so signed shall have
been actually authenticated and delivered by the Trustee, such Securities may
nevertheless be issued, authenticated and delivered as though the person who
signed such Securities had not ceased to be such officer of the Company; and
also any of the Securities may be signed on behalf of the Company by any person
who at the time of the execution of such Securities shall be the proper officer
of the Company, even though at the date of the execution of this Indenture such
person may not have been such officer of the Company.
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SECTION 2.04. Only such of the Securities as shall bear thereon a
certificate substantially in the form of the Trustee's certificate of
authentication hereinafter recited, executed by the Trustee by manual signature,
shall be valid or become obligatory for any purpose or entitle the holder
thereof to any right or benefit under this Indenture, and the certificate of
authentication by the Trustee upon any such Security executed on behalf of the
Company as aforesaid shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
holder thereof is entitled to the benefits of this Indenture.
Each Security shall be dated the date of its authentication, except that
any Global Security shall be dated as of the date specified as contemplated by
Section 2.02.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein issued
under the Indenture described herein.
, as Trustee
By
--------------------------------
Authorized Signatory
SECTION 2.05. The Company will keep, at an office or agency to be
maintained by it in the Borough of Manhattan, The City of New York, a register
for the registration and the registration of transfer of the Securities, as in
this Indenture provided, which register shall at all times be open for
inspection by the Trustee. Such register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time.
Upon surrender for registration of transfer of any Security of any series
at such office or agency, the Company shall execute and the Trustee shall
authenticate and deliver a Security or Securities of such series for a like
aggregate principal amount, in such authorized denomination or denominations and
registered in such name or names as may be requested. The transfer of any
Security shall not be valid as against the Company or the Trustee unless
registered at such office or agency by the registered holder, or by his attorney
duly authorized in writing.
Securities of any series in their several authorized denominations are
exchangeable for a Security or Securities of such series in authorized
denominations and of a like aggregate principal amount. Securities to be
exchanged as aforesaid shall be surrendered for that purpose by the registered
holder thereof at such office or agency, and the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Security or
Securities in
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such authorized denomination or denominations as the Securityholder making the
exchange shall have requested and shall be entitled to receive. The Company
shall not be required to make any exchange or effect registration of transfer of
(i) any Security which shall have been designated for redemption in whole or in
part except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed, or (ii) any Security for a period of 15 days next
preceding any selection of Securities for redemption.
All Securities presented or surrendered for registration of transfer,
exchange or payment shall (if so required by the Company or the Trustee) be duly
endorsed by, or accompanied by a written instrument or instruments of transfer
(in form satisfactory to the Company and the Trustee) duly executed by, the
registered holder or by his attorney duly authorized in writing.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
applicable tax or other governmental charge payable in connection therewith.
The Company and the Trustee, and the agents of either, may deem and treat
the person in whose name any Security is registered as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for all purposes whatsoever
(subject to the provisions set forth herein relating to Record Dates), and the
Company and the Trustee, and the agents of either, shall not be affected by any
notice to the contrary.
SECTION 2.06. In case any temporary or definitive Security of a particular
series shall become mutilated or be destroyed, lost or stolen, then upon the
conditions hereinafter set forth the Company in its discretion may execute, and
thereupon the Trustee shall authenticate and deliver, a new Security of the same
series of like tenor and principal amount and bearing a different number, in
exchange and substitution for and upon cancellation of the mutilated Security or
in lieu of and substitution for the Security so destroyed, lost or stolen;
provided, however, that if any such mutilated, destroyed, lost or stolen
Security shall have become or is about to become due and payable upon the
maturity thereof, the Company in its discretion may, instead of issuing a
substitute Security, pay such Security without requiring the surrender thereof.
The applicant for any substitute Security or for payment of any such mutilated,
destroyed, lost or stolen Security shall furnish to the Company and to the
Trustee evidence satisfactory to them, in their discretion, of the ownership of
and the destruction, loss or theft of such Security and shall furnish to the
Company and to the Trustee indemnity satisfactory to them, in their discretion,
and, if required, shall reimburse the Company and the Trustee for all expenses
(including counsel fees and any tax or other governmental charge that may be
imposed in relation thereto) in connection with the preparation, issue and
authentication of such substitute Security or the payment of such mutilated,
destroyed, lost or stolen Security, and shall comply with such other reasonable
regulations as the Company and the Trustee, or either of them, may prescribe.
Any such new Security delivered pursuant to this Section 2.06 shall constitute
an additional contractual obligation on the part of the Company, whether or not
the allegedly destroyed, lost or
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stolen Security shall be at any time enforceable by anyone, and shall be equally
and proportionately entitled to the benefit of this Indenture with all other
Securities of the same series issued hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and shall preclude any and all
other rights or remedies.
SECTION 2.07. Subject to the provisions set forth herein relating to Record
Dates, each Security delivered pursuant to any provision of this Indenture in
exchange or substitution for, or upon registration of transfer of, any other
Security shall carry all the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 2.08. Pending the preparation of definitive Securities of any
series the Company may execute and thereupon, as provided in Section 3.01, the
Trustee shall authenticate and deliver temporary Securities of such series
(printed or lithographed). Temporary Securities shall be issuable in any
authorized denomination, and substantially in the form of the definitive
Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Every such temporary Security of a particular series shall be authenticated by
the Trustee upon the same conditions and in substantially the same manner, and
with the same effect, as the definitive Securities of such series. Without
unreasonable delay the Company will execute and deliver to the Trustee
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange for definitive
Securities of the same series, at the principal office of the Trustee, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
an equal aggregate principal amount of definitive Securities of the same series.
Such exchange shall be made by the Company at its own expense and without any
charge therefor except that the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto. Until so exchanged, the temporary Securities of a particular series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series authenticated and delivered hereunder.
SECTION 2.09. (a) A Global Security may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(b) If at any time the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for any series of Securities or if at any
time the Depositary for such series shall no longer be registered or in good
standing under the Securities Exchange Act of 1934, as amended, or any other
applicable statute or regulation, and a successor Depositary for such securities
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company will
execute, and, subject to Articles Two and Three, the Trustee, upon written
notice from the Company, will authenticate and deliver the Securities of such
series in definitive registered form without
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coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global Security.
In such event the Company will execute, and subject to Section 2.05, the
Trustee, upon receipt of an Officers Certificate evidencing such determination
by the Company, will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Security for such series in exchange for such Global Security. Such Securities
in definitive registered form issued in exchange for the Global Security shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary, for delivery to the Persons in whose names such
Securities are so registered.
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication. The Trustee shall
thereupon authenticate and deliver such Securities to or upon the written order
of the Company, signed by its Chairman, any Vice Chairman, its President or any
Vice President, without any further action by the Company. In authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 10.02) shall be fully protected in relying
upon:
(a) a Board Resolution relating thereto and, if applicable, an appropriate
record of any action taken pursuant to such resolution, certified by the
Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 14.03, which
shall also state:
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(1) that the form and terms of such Securities have
been established by or pursuant to one or more Board Resolutions, by a
supplemental indenture as permitted by Section 13.01(g), or by both
such resolution or resolutions and such supplemental indenture, in
conformity with the provisions of this Indenture;
(2) that the supplemental indenture, if any, when
executed and delivered by the Company and the Trustee, will constitute
a valid and legally binding obligation of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and will be entitled to the benefits of this Indenture;
(4) that the Company has the corporate power to issue
such Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(5) that the issuance of such Securities will not
contravene the charter or by-laws of the Company or result in any
violation of any of the terms or provisions of any law or regulation or
of any indenture, mortgage or other agreement by which the Company is
bound and under which long-term debt of the Company as reflected in its
latest financial statements on file with the Securities and Exchange
Commission is outstanding; and
(6) that all requirements of this Indenture
applicable to the Company in respect of the execution and delivery by
the Company of such Securities and of such supplemental indenture, if
any, have been complied with and that, assuming (a) all requisite
corporate authorization on the part of the Trustee, (b) continued
compliance by the Trustee with the terms of the Indenture specifically
applicable to the Trustee, and (c) due authentication and delivery of
such Securities by the Trustee, the execution and delivery of such
supplemental indenture, if any, will not violate the terms of this
Indenture, and that, other than compliance with federal and state
securities laws, no authorization, approval or consent by any
regulatory or statutory or other public authority is required in
connection with the execution and delivery of such supplemental
indenture or for the creation, issuance, authentication and delivery of
the Securities pursuant to this Indenture.
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The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 2.02 and of this Section 3.01, if
all the Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers' Certificate or supplemental
indenture otherwise required pursuant to Section 2.02 or the written order of
the Company, Officers' Certificate and Opinion of Counsel required pursuant to
this Section 3.01 at or prior to the time of authentication of each Security of
such series if such documents are delivered at or prior to the time of
authentication upon original issuance of the first Security of such series to be
issued.
Each Security shall be dated the date of its authentication.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. Redemption of Securities (other than pursuant to a sinking
fund or analogous provision) permitted by the terms of any series of Securities
shall be made in accordance with such terms and Section 4.02; provided, however,
that if any such terms of a series of Securities shall conflict with any
provision of this Article, the terms of such series shall govern.
SECTION 4.02. The election of the Company to redeem any Securities of any
series shall be evidenced by or pursuant to a Board Resolution. If the Company
shall elect to redeem the Securities of any series in whole or in part as
aforesaid, it shall fix a date for redemption and give notice of its election so
to redeem by mailing written notice, postage prepaid, at least 30 days prior to
the redemption date, to all holders of Securities to be redeemed as a whole or
in part, addressed to them at their respective addresses as the same shall then
appear on the register of the Company. Any notice which shall be mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the holder shall receive such notice. Failure to mail such
notice, or any defect in the notice mailed, to the holder of any Security
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.
Each notice of redemption shall state such election on the part of the
Company, the Redemption Date and place of payment of the Securities to be
redeemed and the Redemption Price and that the Securities designated in such
notice for redemption are required to be presented on or after such Redemption
Date and at such place for payment and that interest to the Redemption Date on
the Securities and portions of Securities called for redemption will be paid
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as specified in said notice and shall cease to accrue thereon on such date. If
less than all the outstanding Securities of a series are to be redeemed, the
notice shall also designate the Securities or portions of Securities that are to
be redeemed. If any Security is to be redeemed in part only, the notice shall
also state that upon presentation of such Security on or after the Redemption
Date at said place, such Security will be cancelled and a new Security or
Securities of the same series, in an aggregate principal amount equal to the
unredeemed portion of such Security, will be issued and delivered without charge
to the holder; provided, however, that if a Global Security is so cancelled, the
new Global Security will be in an aggregate principal amount equal to the
unredeemed portion of the Global Security so cancelled.
Notice having been so given, the Securities and portions of Securities to
be redeemed shall on the Redemption Date specified in such notice become due and
payable at the applicable Redemption Price, together with interest accrued
thereon to the Redemption Date, and from and after the Redemption Date so
specified interest on such Securities and portions of Securities shall cease to
accrue (unless the Company shall default in the payment of the Redemption Price
of such Securities or any such accrued interest, in which case such Securities
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in such Securities), and upon presentation of such Securities at said
place of payment and redemption in accordance with said notice, such Securities
and portions of Securities shall be paid by the Company at the applicable
Redemption Price, together with interest accrued to the Redemption Date (except
that, if the Redemption Date shall be an Interest Payment Date, the interest
payable on such date shall be paid to the registered holders of such Securities
at the close of business on the applicable Record Date, subject to the
provisions of Section 2.01).
If the Company shall at any time elect to redeem less than all the
Securities of a series then outstanding, it shall at least 45 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
notify the Trustee of the principal amount of Securities to be redeemed, and
thereupon the Trustee shall select, in such manner as the Trustee shall deem
appropriate and fair, the Securities (or portions thereof) of such series to be
redeemed. Unless otherwise provided in the Officers' Certificate or Supplemental
Indenture provided for in Section 2.02, no Security of a denomination of $1,000
shall be redeemed in part and Securities may be redeemed in part only in
integral multiples of $1,000. The Trustee shall, as soon as practical, notify
the Company in writing of the Securities and portions of Securities so selected.
SECTION 4.03. Redemption of Securities permitted or required pursuant to a
sinking fund for the retirement of Securities of a series by the terms of such
series of Securities shall be made in accordance with such terms of such series
of Securities and this Article; provided, however, that if any such terms of a
series of Securities shall conflict with any provision of this Article, the
terms of such series shall govern.
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The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "Mandatory Sinking Fund
Payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "Optional Sinking
Fund Payment." If provided for by the terms of Securities of any series, the
cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as
provided in Section 4.04.
SECTION 4.04. The Company may, at its option, satisfy any Mandatory Sinking
Fund Payment obligation, in whole or in part, with respect to a particular
series of Securities by (1) delivering to the Trustee outstanding Securities of
such series in transferable form theretofore purchased or otherwise acquired by
the Company or redeemed at the election of the Company pursuant to Section 4.01
or (2) receiving credit for Securities of such series (not previously so
credited) acquired by the Company and theretofore delivered to the Trustee for
cancellation. The Trustee shall credit such Mandatory Sinking Fund Payment
obligation with an amount equal to the redemption price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such Mandatory Sinking Fund Payment shall be reduced accordingly. If the
Company shall elect to so satisfy any Mandatory Sinking Fund Payment obligation,
it shall deliver to the Trustee not less than 45 days prior to the relevant
sinking fund payment date a written notice signed on behalf of the Company by
its Chairman, any Vice Chairman, its President, any Vice President, its
Treasurer, any Deputy Treasurer or any Assistant Treasurer, which shall
designate the Securities (and portions thereof, if any) so delivered or credited
and which shall be accompanied by such Securities (to the extent not theretofore
delivered and cancelled) in transferable form. In case of the failure of the
Company, at or before the time so required, to give such notice and deliver such
Securities the Mandatory Sinking Fund Payment obligation shall be paid entirely
in funds.
SECTION 4.05. In addition to the sinking fund requirements of Section 4.04,
to the extent, if any, provided for by the terms of a particular series of
Securities, the Company may, at its option, make an Optional Sinking Fund
Payment with respect to such Securities. Unless otherwise provided by such
terms, (a) to the extent that the right of the Company to make such Optional
Sinking Fund Payment shall not be exercised in any year, it shall not be
cumulative or carried forward to any subsequent year, and (b) such optional
payment shall operate to reduce the amount of any Mandatory Sinking Fund Payment
obligation as to Securities of the same series. If the Company intends to
exercise its right to make such optional payment in any year it shall deliver to
the Trustee not less than 45 days prior to the relevant sinking fund payment
date a certificate signed by its Chairman, any Vice Chairman, its President, any
Vice President, its Treasurer, any Deputy Treasurer or any Assistant Treasurer
stating that the Company will exercise such optional right, and specifying the
amount which the Company will pay on or before the next succeeding sinking fund
payment date. Such certificate shall also state that no event of default has
occurred and is continuing.
SECTION 4.06. If the sinking fund payment or payments made in funds
pursuant to either Sections 4.04 or 4.05 with respect to a particular series of
Securities plus any unused balance of any preceding sinking fund payments made
in funds with respect to such series shall
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exceed $50,000 (or a lesser sum if the Company shall so request, or such
equivalent sum as set forth in the Officers' Certificate or supplemental
indenture provided for in Section 2.02 for Securities denominated other than in
U.S. dollars), it shall be applied by the Trustee on the sinking fund payment
date next following the date of such payment, unless the date of such payment
shall be a sinking fund payment date, in which case such payment shall be
applied on such sinking fund payment date, to the redemption of Securities of
such series at the redemption price specified in Section 4.03. The Trustee shall
select, in the manner provided in Section 4.02, for redemption on such sinking
fund payment date, a sufficient principal amount of Securities of such series to
absorb said funds, as nearly as may be, and shall, at the expense and in the
name of the Company, thereupon cause notice of redemption of the Securities to
be given in substantially the manner provided in Section 4.02 for the redemption
of Securities in part at the option of the Company, except that the notice of
redemption shall also state that the Securities are being redeemed for the
sinking fund. Any sinking fund moneys not so applied by the Trustee to the
redemption of Securities of such series shall be added to the next sinking fund
payment received in funds by the Trustee and, together with such payment, shall
be applied in accordance with the provisions of this Section 4.06. Any and all
sinking fund moneys held by the Trustee on the last sinking fund payment date
with respect to Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee to the payment of the principal of the Securities of such series at
maturity.
On or prior to each sinking fund payment date, the Company shall pay to the
Trustee a sum equal to all interest accrued to the date fixed for redemption on
Securities to be redeemed on such sinking fund payment date pursuant to this
Section 4.06.
The Trustee shall not redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of Securities of such series by
operation of the sinking fund during the continuance of a default in payment of
interest on any Securities of such series or of any event of default (other than
an event of default occurring as a consequence of this paragraph) of which the
Trustee has actual knowledge, except that if the notice of redemption of any
Securities of such series shall theretofore have been mailed in accordance with
the provisions hereof, the Trustee shall redeem such Securities if funds
sufficient for that purpose shall be deposited with the Trustee in accordance
with the terms of this Article Four. Except as aforesaid, any moneys in the
sinking fund at the time any such default or event of default shall occur and
any moneys thereafter paid into the sinking fund shall, during the continuance
of such default or event of default, be held as security for the payment of all
the Securities of such series; provided, however, that in case such default or
event of default shall have been cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date on which such
moneys are required to be applied pursuant to the provisions of this Section
4.06.
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ARTICLE FIVE
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
SECTION 5.01. The Company will duly and punctually pay the principal of and
premium, if any, on each of the Securities, and the interest which shall have
accrued thereon, at the dates and place and in the manner provided in the
Securities and in this Indenture.
SECTION 5.02. As long as any of the Securities shall remain outstanding,
the Company will maintain an office or agency in the Borough of Manhattan, The
City of New York, where Securities may be presented for payment, exchange and
registration of transfer as in this Indenture provided and where notices and
demands to or upon the Company in respect of this Indenture and of the
Securities may be served. The Company will from time to time give written notice
to the Trustee of the location of such office or agency and of any change in the
location thereof. In case the Company shall fail to maintain any such office or
agency or to give such notice of its location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office. The Company hereby initially designates the Corporate
Trust Office as its office or agency for all the above purposes.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
and Securityholders of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 5.03. If the Company shall at any time act as its own paying agent
with respect to any series of Securities, then, on or before the date on which
the principal of and premium, if any, or interest on any of the Securities of
that series by their terms or as a result of the calling thereof for redemption
shall become payable, the Company will set apart and segregate and hold in trust
for the benefit of the holders of such Securities a sum sufficient to pay such
principal and premium, if any, or interest which shall have so become payable
and will notify the Trustee of its failure to act in that regard and of any
failure by the Company or any other obligor upon the Securities of that series
to make any such payment. If the Company shall appoint, and at the time have, a
paying agent for the payment of the principal of and premium, if any, or
interest on any series of Securities, then, on or before the date on which
the principal of and premium, if any, or interest on any of the Securities
of that series shall become payable as aforesaid, whether by their terms or as a
result of the calling thereof for redemption, the Company will pay to such
paying agent a sum sufficient to pay such principal and premium,
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if any, or interest, to be held in trust for the benefit of the holders of such
Securities. If such paying agent shall be other than the Trustee, the Company
will cause such paying agent to execute and deliver to the Trustee an
instrument in which such paying agent shall agree with the Trustee, subject
to the provisions of this Section 5.03, (1) that such paying agent shall hold
all sums held by such paying agent for the payment of the principal of and
premium, if any, or interest on the Securities of that series in trust for the
benefit of the holders of such Securities until such sums shall be paid to the
holder of such Securities or otherwise disposed of as herein provided; (2)
that such paying agent shall give to the Trustee notice of any default by the
Company or any other obligor upon the Securities of that series in the making
of any payment of the principal of and premium, if any, or interest on the
Securities of that series when the same shall have become due and payable; and
(3) that such paying agent shall, at any time during the continuance of any
such default, upon the written request of the Trustee, deliver to the Trustee
all sums so held in trust by it.
Anything in this Section 5.03 to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a release or satisfaction of this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it or by any paying agent other than the Trustee as
required by this Section 5.03, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such paying
agent.
Any money deposited with the Trustee or any paying agent, or then held by
the Company, in trust for the payment of the principal of and any premium or
interest on any Securities of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on request by the Company, or (if then held by the
Company) shall be discharged from such trust; and the holder of such Securities
or any coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such paying agent with respect to such trust money and all liability
of the Company as trustee thereof shall thereupon cease; provided, however, that
the Trustee or such paying agent, before being require to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper of general circulation in each place of payment, notice that such
money remains unclaimed and that after a date specified therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 5.04. The Company will not consolidate with any other corporation
or accept a merger of any other corporation into the Company or permit the
Company to be merged into any other corporation, or sell other than for cash or
lease all or substantially all its assets to another corporation, or purchase
all or substantially all the assets of another corporation, unless (i) either
the Company shall be the continuing corporation, or the successor, transferee or
lessee corporation (if other than the Company) shall expressly assume, by
indenture supplemental hereto satisfactory to the Trustee, executed and
delivered by such corporation prior to or simultaneously with such
consolidation, merger, sale or lease, the due and punctual payment of the
principal of and interest and premium, if any, on all the Securities, according
to their tenor,
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and the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be performed or observed by the Company, and
(ii) immediately after such consolidation, merger, sale, lease or purchase the
Company or the successor, transferee or lessee corporation (if other than the
Company) would not be in default in the performance of any covenant or condition
of this Indenture. A purchase by a Subsidiary of all or substantially all of the
assets of another corporation shall not be deemed to be a purchase of such
assets by the Company.
SECTION 5.05. 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 financial officer or principal accounting officer
of the Company, stating that:
(a) a review of the activities of the Company during such year with regard
to its compliance with this Indenture has been made under his supervision; and
(b) to the best of his knowledge, based on such review, the Company has
fulfilled all its obligations under Sections 5.01 to 5.03 of this Indenture
throughout such year, or, if there has been a default (without regard to periods
of grace or notice requirements) in the fulfillment of any such obligation,
specifying each such default known to him and the nature and status thereof.
SECTION 5.06. Anything in this Indenture to the contrary notwithstanding,
the Company or any Subsidiary may fail or omit in any particular instance to
comply with a covenant or condition set forth in Section 5.04 with respect to
any series of Securities if the Company shall have obtained and filed with the
Trustee, prior to the time of such failure or omission, evidence (as provided in
Article Seven) of the consent of the holders of at least a majority in aggregate
principal amount of the Securities of such series at the time outstanding,
either waiving such compliance in such instance or generally waiving compliance
with such covenant or condition, but no such waiver shall extend to or affect
any obligation not waived by the terms of such waiver or impair any right
consequent thereon. Until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such covenant or
conditions shall remain in full force and effect.
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Except where otherwise indicated by the context or where the
term is otherwise defined for a specific purpose, the term "event of default" as
used in this Indenture with respect to Securities of any series shall mean one
of the following described events (whatever the reason for such event of default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of
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any court or any order, rule or regulation of any administrative or
governmental body) unless it is either inapplicable to a particular series or
it is specifically deleted or modified in the supplemental indenture, if any,
under which such series of Securities is issued:
(a) the failure of the Company to pay any installment of interest on any
Security of such series, when and as the same shall become payable, which
failure shall have continued unremedied for a period of 30 days;
(b) the failure of the Company to pay the principal of (and premium, if
any, on) any Security of such series, when and as the same shall become
payable, whether at maturity as therein expressed, by call for redemption
(otherwise than pursuant to a sinking fund), by declaration as authorized by
this Indenture or otherwise, whether or not permitted by Article Fourteen;
(c) the failure of the Company to pay a sinking fund installment, if
any, when and as the same shall become payable by the terms of a Security of
such series, which failure shall have continued unremedied for a period of 30
days, whether or not permitted by Article Fourteen;
(d) the failure of the Company, subject to the provisions of Section
5.06, to observe and perform any other of the covenants or agreements on the
part of the Company contained in this Indenture (including any indenture
supplemental hereto) (other than a covenant or agreement which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than that series), which failure shall not have been
remedied to the satisfaction of the Trustee, or without provision deemed by
the Trustee to be adequate for the remedying thereof having been made, for a
period of 90 days after written notice shall have been given to the Company
by the Trustee or shall have been given to the Company and the Trustee by
holders of 25% or more in aggregate principal amount of the Securities of
such series then outstanding, specifying such failure and requiring the
Company to remedy the same;
(e) the entry by a court having jurisdiction in the premises of a decree
or order for relief in respect of the Company in an involuntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or
for substantially all of its property, or ordering the winding-up or
liquidation of its affairs and such decree or order shall remain unstayed and
in effect for a period of 90 consecutive days;
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(f) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Company to the entry of an
order for relief in an involuntary case under any such law, or the consent by
the Company to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or similar
official) of the Company or for substantially all of its property, or the
making by it of an assignment for the benefit of creditors; or
(g) the occurrence of any other event of default with respect to
Securities of such series as provided in a supplemental indenture, Board
Resolution or Officers' Certificate applicable to such series of Securities.
SECTION 6.02. If any one or more of the above-described events of
default shall happen with respect to Securities of any series at the time
outstanding, then, and in each and every such case, during the continuance of
any such event of default, the Trustee or the holders of 25% or more in
principal amount of the Securities of such series then outstanding may
declare the principal (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Securities of such series
then outstanding, if not then due and payable, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by such holders), and upon any such declaration the same shall become
and be immediately due and payable, anything in this Indenture or in the
Securities of such series contained to the contrary notwithstanding; provided
that no event of default with respect to Securities of a series, except with
respect to an event of default under subsections (e) and (f) of Section 6.01
and except to the extent otherwise provided in subsection (d) of Section
6.01, shall constitute an event of default with respect to Securities of any
other series. This provision, however, is subject to the condition that, if
at any time after the principal of all the Securities of such series shall
have been so declared to be due and payable, all arrears of interest, if any,
upon all the Securities of such series (with interest, to the extent that
interest thereon shall be legally enforceable, on any overdue installment of
interest at the rate borne by the Securities of such series) and all amounts
owing the Trustee and any predecessor trustee hereunder under Section
10.01(a) and all other sums payable under this Indenture (except the
principal of the Securities of such series which would not be due and payable
were it not for such declaration), shall be paid by the Company, and every
other default and event of default under this Indenture shall have been made
good to the reasonable satisfaction of the Trustee or of the holders of a
majority in principal amount of the Securities of such series then
outstanding, or provision deemed by the Trustee or by such holders to be
adequate therefor shall have been made, then and in every such case the
holders of a majority in principal amount of the Securities of such series
then outstanding may, on behalf of the holders of all the Securities of such
series, waive the event of default by reason of which the principal of the
Securities of such series shall have been so declared to be due and payable
and may rescind and annul such declaration and its consequences; but no such
waiver, rescission or annulment shall extend to or affect any subsequent
default or event of default or impair any right consequent thereon. Any
declaration by the Trustee pursuant to this Section 6.02 shall be
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by written notice to the Company, and any declaration or waiver by the
holders of Securities of any series pursuant to this Section 6.02 shall be by
written notice to the Company and the Trustee.
The Company and the Trustee may, to the extent provided in Section
13.01, enter into one or more indentures supplemental hereto with respect to
any series of the Securities which may provide for additional or different
events of default with respect to such series of Securities.
SECTION 6.03. If the Company shall fail for a period of 30 days to pay
any installment of interest on the Securities of any series or shall fail to
pay the principal of and premium, if any, on any of the Securities of such
series when and as the same shall become due and payable, whether at
maturity, or by call for redemption (otherwise than pursuant to the sinking
fund), by declaration as authorized by this Indenture, or otherwise, or shall
fail for a period of 30 days to make any sinking fund payment as to a series
of Securities, then, upon demand of the Trustee, the Company will pay to the
Trustee for the benefit of the holders of Securities of such series then
outstanding the whole amount which then shall have become due and payable on
all the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and all amounts owing the Trustee and any predecessor trustee
hereunder under Section 10.01(a).
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceeding at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor upon the Securities of such series, and collect the moneys adjudged
or decreed to be payable out of the property of the Company or any other
obligor upon the Securities of such series, wherever situated, in the manner
provided by law. Every recovery of judgment in any such action or other
proceeding, subject to the payment to the Trustee of all amounts owing the
Trustee and any predecessor trustee hereunder under Section 10.01(a), shall
be for the ratable benefit of the holders of such series of Securities which
shall be the subject of such action or proceeding. All rights of action upon
or under any of the Securities or this Indenture may be enforced by the
Trustee without the possession of any of the Securities and without the
production of any thereof at any trial or any proceeding relative thereto.
SECTION 6.04. The Trustee is hereby appointed, and each and every holder
of the Securities, by receiving and holding the same, shall be conclusively
deemed to have appointed the Trustee, the true and lawful attorney-in-fact of
such holder, with authority to make or file (whether or not the Company shall
be in default in respect of the payment of the principal of, or interest on,
any of the Securities), in its own name and as trustee of an express trust or
otherwise as it shall deem advisable, in any receivership, insolvency,
liquidation, bankruptcy, reorganization or other judicial proceeding relative
to the Company or any other obligor upon the
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Securities or to their respective creditors or property, any and all claims,
proofs of claim, proofs of debt, petitions, consents, other papers and
documents and amendments of any thereof, as may be necessary or advisable in
order to have the claims of the Trustee and any predecessor trustee hereunder
and of the holders of the Securities allowed in any such proceeding and to
collect and receive any moneys or other property payable or deliverable on
any such claim, and to execute and deliver any and all other papers and
documents and to do and perform any and all other acts and things, as it may
deem necessary or advisable in order to enforce in any such proceeding any of
the claims of the Trustee and any predecessor trustee hereunder and of any of
such holders in respect of any of the Securities; and any receiver, assignee,
trustee, custodian or debtor in any such proceeding is hereby authorized, and
each and every taker or holder of the Securities, by receiving and holding
the same, shall be conclusively deemed to have authorized any such receiver,
assignee, trustee, custodian or debtor, to make any such payment or delivery
only to or on the order of the Trustee, and to pay to the Trustee any amount
due it and any predecessor trustee hereunder under Section 10.01(a);
provided, however, that nothing herein contained shall be deemed to authorize
or empower the Trustee to consent to or accept or adopt, on behalf of any
holder of Securities, any plan of reorganization or readjustment of the
Company affecting the Securities or the rights of any holder thereof, or to
authorize or empower the Trustee to vote in respect of the claim of any
holder of any Securities in any such proceeding.
SECTION 6.05. Any moneys collected by the Trustee with respect to a
series of Securities under this Article Six shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities, and stamping
thereon the payment, if only partially paid, and upon surrender thereof, if
fully paid:
First: To the payment of all amounts due to the Trustee and any
predecessor trustee hereunder under Section 10.01(a).
Second: In case the principal of the outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest
on the Securities of such series, in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments
of interest at the rate borne by such Securities, such payments to be made
ratably to the persons entitled thereto.
Third: In case the principal of the outstanding Securities of such
series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of such
series for principal and premium, if any, and interest, with interest on
the overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Securities of such series, and in case
such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and premium, if any, and interest without preference or priority
of principal and premium, if any, over interest, or of
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interest over principal and premium, if any, or of any installment of
interest over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of
such principal and premium, if any, and accrued and unpaid interest.
Any surplus then remaining shall be paid to the Company or to such other persons
as shall be entitled to receive it.
SECTION 6.06. The holders of a majority in principal amount of the
Securities of any series at the time outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
hereunder, or of exercising any trust or power hereby conferred upon the Trustee
with respect to the Securities of such series; provided, however, that, subject
to the provisions of Sections 10.01 and 10.02, the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel
determines that the action so directed may not lawfully be taken or would be
unduly prejudicial to holders not joining in such direction or would involve the
Trustee in personal liability. Prior to any declaration accelerating the
maturity of the Securities of any series, the holders of a majority in aggregate
principal amount of such series of Securities at the time outstanding may on
behalf of the holders of all of the Securities of such series waive any past
default or event of default hereunder and its consequences except a default in
the payment of interest or any premium on or the principal of the Securities of
such series. Upon any such waiver the Company, the Trustee and the holders of
the Securities of such series shall be restored to their former positions and
rights hereunder, respectively, but no such waiver shall extend to any
subsequent or other default or event of default or impair any right consequent
thereon. Whenever any default or event of default hereunder shall have been
waived as permitted by this Section 6.06, said default or event of default shall
for all purposes of the Securities of such series and this Indenture be deemed
to have been cured and to be not continuing.
SECTION 6.07. No holder of any Security of any series shall have any right
to institute any action, suit or proceeding at law or in equity for the
execution of any trust hereunder or for the appointment of a receiver or for any
other remedy hereunder, in each case with respect to an event of default with
respect to such series of Securities, unless such holder previously shall have
given to the Trustee written notice of the happening of one or more of the
events of default herein specified with respect to such series of Securities,
and unless also the holders of 25% in principal amount of the Securities of such
series then outstanding shall have requested the Trustee in writing to take
action in respect of the matter complained of, and unless also there shall have
been offered to the Trustee security and indemnity satisfactory to it against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after receipt of such notification, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; and such notification, request and offer of indemnity are hereby
declared in every such case to be conditions precedent to any such action, suit
or proceeding by any holder of any Security of such series; it being understood
and intended that no one or more of the holders of Securities of such series
shall have any right in any manner whatsoever by his or their action to enforce
any right hereunder, except in the manner herein
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provided, and that every action, suit or proceeding at law or in equity shall be
instituted, had and maintained in the manner herein provided and for the equal
and ratable benefit of all holders of the outstanding Securities of such series;
provided, however, that nothing contained in this Indenture or in the Securities
of such series shall affect or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on the Securities of such series to the respective holders of such
Securities at the respective due dates in such Securities stated, or affect or
impair the right, which is also absolute and unconditional, of such holders to
institute suit to enforce the payment thereof.
SECTION 6.08. All parties to this Indenture and the holders of the
Securities agree that the court may in its discretion require, in any action,
suit or proceeding for the enforcement of any right or remedy under this
Indenture, or in any action, suit or proceeding against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such action, suit or proceeding of an undertaking to pay the costs of such
action, suit or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such action, suit or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 6.08 shall not apply to any action,
suit or proceeding instituted by the Trustee, to any action, suit or proceeding
instituted by any one or more holders of Securities holding in the aggregate
more than 10% in principal amount of the Securities of any series outstanding,
or to any action, suit or proceeding instituted by any holder of Securities of
any series for the enforcement of the payment of the principal of or premium, if
any, or the interest on, any of the Securities of such series, on or after the
respective due dates expressed in such Securities.
SECTION 6.09. No remedy herein conferred upon or reserved to the Trustee or
to the holders of Securities of any series is intended to be exclusive of any
other remedy or remedies, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of the Trustee
or of any holder of the Securities of any series to exercise any right or power
accruing upon any default or event of default shall impair any such right or
power or shall be construed to be a waiver of any such default or event of
default or an acquiescence therein; and every power and remedy given by this
Article Six to the Trustee and to the holders of Securities of any series,
respectively, may be exercised from time to time and as often as may be deemed
expedient by the Trustee or by the holders of Securities of such series, as the
case may be. In case the Trustee or any holder of Securities of any series shall
have proceeded to enforce any right under this Indenture and the proceedings for
the enforcement thereof shall have been discontinued or abandoned because of
waiver or for any other reason or shall have been adjudicated adversely to the
Trustee or to such holder of Securities, then and in every such case the
Company, the Trustee and the holders of the Securities of such series shall
severally and respectively be restored to their former positions and rights
hereunder and thereafter all rights, remedies and powers of the Trustee and the
holders of the Securities of such series shall continue as though no such
proceedings had been instituted, except as to any matters so waived or
adjudicated.
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SECTION 6.10. The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no law had been enacted.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Whenever in this Indenture it is provided that the holders of
a specified percentage or a majority in aggregate principal amount of the
Securities or of any series of Securities may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage or majority have joined therein
may be evidenced (a) by any instrument or any number of instruments of similar
tenor executed by Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of the holders of Securities voting in favor
thereof at any meeting of Securityholders duly called and held in accordance
with the provisions of Article Eight, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of Securityholders.
SECTION 7.02. Proof of the execution of any instrument by a Securityholder
or his agent or proxy and proof of the holding by any person of any of the
Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any person of any such instrument may
be proved (a) by the certificate of any notary public or other officer in any
jurisdiction who, by the laws thereof, has power to take acknowledgments or
proof of deeds to be recorded within such jurisdiction, that the person who
signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (b) by the affidavit of a witness of such
execution sworn to before any such notary or other officer. Where such execution
is by a person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The ownership of Securities shall be proved by the register of such
Securities or by a certificate of the registrar thereof.
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The Trustee may accept such other proof or may require such additional
proof of any matter referred to in this Section 7.02 as it shall deem
appropriate or necessary.
SECTION 7.03. In determining whether the holders of the requisite principal
amount of the Securities have concurred in any direction, request, waiver or
consent under this Indenture, Securities which are owned by the Company or by
any other obligor on the Securities or by any person directly or indirectly
controlling, or controlled by, or under direct or indirect common control with,
the Company or any such other obligor shall be disregarded, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, request, waiver or consent, only Securities which the Trustee
knows are so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section 7.03 if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Securities and that the pledgee is not a person
directly or indirectly controlling, or controlled by, or under direct or
indirect common control with, the Company or any such other obligor. In case of
a dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
In determining whether the holders of the requisite principal amount of the
outstanding Securities have given any direction, request, waiver or consent
under this Indenture, the principal amount of an Original Issue Discount
Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.02.
SECTION 7.04. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Securities or of any
series of Securities specified in this Indenture in connection with such action,
any holder of a Security which is shown by the evidence to be included in the
Securities the holders of which have consented to such action may, by filing
written notice with the Trustee at its principal office and upon proof of
holding as provided in Section 7.02, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, irrespective of whether or not any notation
in regard thereto is made upon such Security or any Security issued in exchange
or substitution therefor.
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ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. A meeting of Securityholders may be called at any time and
from time to time pursuant to the provisions of this Article Eight for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Six;
(b) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article Ten;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 13.02; or
(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of the Securities of any one
or more or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
SECTION 8.02. The Trustee may at any time call a meeting of Securityholders
of all series that may be affected by the action proposed to be taken, to take
any action specified in Section 8.01, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, as the Trustee shall
determine. Notice of every meeting of the Securityholders of a series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to holders of Securities
of such series at their addresses as they shall appear on the register of the
Company. Such notice shall be mailed not less than 20 nor more than 90 days
prior to the date fixed for the meeting.
SECTION 8.03. In case at any time the Company, pursuant to a resolution of
its Board of Directors, or the holders of at least 10% in aggregate principal
amount of the Securities of a series then outstanding that may be affected by
the action proposed to be taken, shall have requested the Trustee to call a
meeting of Securityholders of such series, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Securityholders may determine
the time and the place in the Borough of Manhattan for such meeting and may call
such meeting to take any action authorized in Section 8.01, by mailing notice
thereof as provided in Section 8.02.
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SECTION 8.04. To be entitled to vote at any meeting of Securityholders a
person shall (a) be a holder of one or more Securities of a series affected by
the action proposed to be taken at the meeting or (b) be a person appointed by
an instrument in writing as proxy by a holder of one or more such Securities.
The only persons who shall be entitled to be present or to speak at any meeting
of Securityholders shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 8.05. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Securities and
of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.03, at any meeting of
Securityholders of a series each Securityholder of such series or such
Securityholder's proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series outstanding held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders of such series. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
the presence of persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the transaction
of which such meeting was called shall be necessary to constitute a quorum, and
any such meeting may be adjourned from time to time by a majority of those
present, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 8.06. The vote upon any resolution submitted to any meeting of
Securityholders of a series affected by the action proposed to be taken at the
meeting shall be by written ballots on which shall be subscribed the signatures
of the holders of Securities of such series or of their representatives by proxy
and the principal amounts of the Securities of such series held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each
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meeting of Securityholders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 8.02. The record shall show the principal amounts of the Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 8.07. Nothing contained in this Article Eight shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Securityholders of any series or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to the Securityholders of
such series under any of the provisions of this Indenture or of the Securities
of such series.
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS LISTS
SECTION 9.01. (a) The Trustee shall transmit to the holders of Securities,
as hereinafter provided, on or before September 15, 1999 and on or before
Septmber 15 in each year thereafter, a brief report as of the preceding July 15
as and to the extent required by Section 313(a) of the Trust Indenture Act of
1939.
(b) The Trustee shall transmit to the holders of Securities, as hereinafter
provided, a brief report as and to the extent required by Section 313(b) of the
Trust Indenture Act of 1939.
(c) Each report pursuant to the provisions of this Section 9.01 shall be
transmitted by mail as and to the extent required by Section 313(c) of the Trust
Indenture Act of 1939.
(d) The Trustee shall, at the time of the transmission to the holders of
Securities of any report pursuant to the provisions of this Section 9.01, file a
copy of such report with each stock exchange upon which the Securities are
listed and also with the Securities and Exchange Commission. The Company agrees
to notify the Trustee when, as and if the Securities become listed on any stock
exchange.
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The Company will reimburse the Trustee for all expenses incurred in the
preparation and transmission of any report pursuant to the provisions of this
Section 9.01 and of Section 9.02.
SECTION 9.02. (a) The Company will file with the Trustee, within 30 days
after the Company shall be required so to file the same with the Securities and
Exchange Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with the
Securities and Exchange Commission pursuant to the provisions of Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (or copies of such portions
of any of the foregoing as the Securities and Exchange Commission may by rules
and regulations prescribe); or, if the Company is not required to file
information, documents or reports pursuant to the provisions of either of such
Sections, then the Company will file with the Trustee and the Securities and
Exchange Commission, in accordance with rules and regulations prescribed by the
Securities and Exchange Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to the
provisions of Section 13 of the Securities Exchange Act of 1934, in respect of a
security listed and registered on a national securities exchange, as may be
prescribed in such rules and regulations.
(b) The Company will file with the Trustee and the Securities and Exchange
Commission, in accordance with rules and regulations prescribed by the
Securities and Exchange Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required by such rules and
regulations.
(c) The Company will transmit to the holders of Securities, within 30 days
after the filing thereof with the Trustee (unless some other time shall be fixed
by the Securities and Exchange Commission), in the manner and to the extent
provided in subdivision (c) of Section 9.01, such summaries of any information,
documents and reports required to be filed by the Company pursuant to the
provisions of subdivisions (a) and (b) of this Section 9.02 as may be required
by rules and regulations prescribed by the Securities and Exchange Commission.
SECTION 9.03. (a) The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee:
(1) semi-annually, within 15 days after each Record Date, but in any
event not less frequently than semi-annually, a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of
Securities to which such Record Date applies, as of such Record Date; and
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(2) at such other times as the Trustee may request in writing, within
30 days after receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
provided, however, that so long as the Trustee shall be the Security registrar,
such list shall not be required to be furnished.
(b) The Trustee will preserve, in as current form as is reasonably
practicable, all information as to the names and addresses of holders of
Securities so furnished or caused to be furnished to it by the Company or
received by it in its capacity as paying agent or Security registrar. The
Trustee may (1) destroy any information furnished to it as provided in
subdivision (a) of this Section 9.03 upon receipt of new similar information so
furnished to it and (2) destroy any information received by it as paying agent
or Security registrar, but not until 45 days after a subsequent interest payment
shall have been made:
(c) Within five business days after receipt by the Trustee of a written
application by any three or more holders of Securities stating that such holders
(hereinafter in this subdivision (c) called "such applicants") desire to
communicate with other holders of Securities with respect to their rights under
this Indenture or under the Securities, and accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, and by
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, the Trustee will, at
its election, either
(1) afford to such applicants access to all information furnished to,
or received by, and preserved by, the Trustee pursuant to the provisions of
this Section 9.03; or
(2) inform such applicants as to the approximate number of holders of
Securities according to the most recent information so furnished to, or
received by, and preserved by, the Trustee, and as to the approximate cost
of mailing to such holders of Securities the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to all holders of Securities whose names and addresses are contained in the
information so furnished to, or received by, and preserved by, the Trustee
copies of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of such mailing, unless, within five days after such tender,
the Trustee shall mail to such applicants, and file with the Securities and
Exchange Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of Securities or
would be in violation of applicable
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law. Such written statement shall specify the basis of such opinion. If the
Securities and Exchange Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of the objections specified in the written statement so
filed, or if, after the entry of an order sustaining one or more of such
objections, the Securities and Exchange Commission shall find, after notice and
opportunity for hearing, that all objections so sustained have been met, and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such holders of Securities with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
Each and every holder of a Security, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the holders of Securities in accordance with the
provisions of this subdivision (c), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under this subdivision
(c).
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01 The Trustee accepts the trusts created by this Indenture upon
the terms and conditions hereof, including the following, to all of which the
parties hereto and the holders from time to time of the Securities agree:
(a) The Trustee shall be entitled to reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and such compensation, as well as the reasonable compensation of its
counsel, and all other reasonable expenses, disbursements and advances incurred
or made by the Trustee hereunder, the Company agrees to pay promptly on demand
from time to time as such services shall be rendered and as such expenses shall
be incurred. The Company also agrees to indemnify each of the Trustee and any
predecessor trustee hereunder for, and to hold it harmless against, any loss,
liability or expense incurred without its own negligence or bad faith, arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder and the performance of its duties, as well as the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. As
security for the performance of the obligations of the Company under this
subdivision (a), the Trustee shall have a lien therefor on any moneys held by
the Trustee hereunder prior to any rights therein of the holders of the
Securities. Notwithstanding any provisions of this Indenture to the contrary,
the obligations of the Company to indemnify the Trustee under this Section
10.01(a) shall survive the resignation or removal of the Trustee or any
satisfaction and discharge under Article Eleven.
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(b) The Trustee may execute any of the trusts or powers hereof and perform
any duty hereunder either directly or by its agents and attorneys and shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(c) The Trustee shall not be responsible in any manner whatsoever for the
correctness of the recitals contained herein or in the Securities (except its
certificates of authentication thereon), all of which are made by the Company
solely; and the Trustee shall not be responsible or accountable in any manner
whatsoever for or with respect to the validity or execution or sufficiency of
this Indenture or of the Securities (except its certificates of authentication
thereon), and the Trustee makes no representation with respect thereto. The
Trustee shall not be accountable for the use or application by the Company of
any Securities, or the proceeds of any Securities, authenticated and delivered
by the Trustee in conformity with the provisions of this Indenture.
(d) The Trustee may consult with counsel, and, to the extent permitted by
Section 10.02, the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered by the Trustee hereunder in good faith and in accordance with
such advice of counsel or Opinion of Counsel.
(e) The Trustee, to the extent permitted by Section 10.02, may rely upon
the certificate of the Secretary or one of the Assistant Secretaries of the
Company as to the adoption of any resolution by the Board of Directors or
stockholders of the Company, and any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by, and whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, offering or omitting any action
hereunder, the Trustee may rely upon, an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed).
(f) The Trustee or any agent of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
10.06 and 10.09, may otherwise deal with the Company with the same rights it
would have had if it were not a Trustee or such agent.
(g) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
(h) Any action taken by the Trustee pursuant to any provision hereof at the
request or with the consent of any person who at the time is the holder of any
Security shall be conclusive and binding in respect of such Security upon all
future holders thereof or of any Security or Securities which may be issued for
or in lieu thereof in whole or in part, whether or not such Security shall have
noted thereon the fact that such request or consent had been made or given.
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(i) Subject to the provisions of Section 10.02, the Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(j) Subject to the provisions of Section 10.02, the Trustee shall not be
under any obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the holders of the
Securities, pursuant to any provision of this Indenture, unless one or more of
the holders of the Securities shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred by it therein or thereby.
(k) Subject to the provisions of Section 10.02, the Trustee shall not be
liable for any action taken or omitted by it in good faith and believed by it to
be authorized or within its discretion or within the rights or powers conferred
upon it by this Indenture.
(1) Subject to the provisions of the first paragraph of Section 10.02, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture or other paper or
document.
(m) Subject to the provisions of Section 10.02, the Trustee shall not be
deemed to have knowledge or notice of any default or event of default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless the
holders of not less than 25% of the Outstanding Securities of any series notify
the Trustee thereof.
SECTION 10.02. If one or more of the events of default specified in Section
6.01 with respect to the Securities of any series shall have happened, then,
during the continuance thereof, the Trustee shall, with respect to the
Securities of such series, exercise such of the rights and powers vested in it
by this Indenture, and shall use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
None of the provisions of this Indenture shall be construed as relieving
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that, anything in this
Indenture contained to the contrary notwithstanding,
(a) unless and until an event of default specified in Section 6.01 with
respect to the Securities of any series shall have happened which at the time is
continuing,
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(1) the Trustee undertakes to perform such duties and only such duties
with respect to the Securities of that series as are specifically set out
in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee, whose duties and obligations shall
be determined solely by the express provisions of this Indenture; and
(2) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in the
absence of bad faith on the part of the Trustee, upon certificates and
opinions furnished to it pursuant to the express provisions of this
Indenture; but in the case of any such certificates or opinions which, by
the provisions of this Indenture, are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable to any holder of Securities or to any
other person for any error of judgment made in good faith by a Responsible
Officer or Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable to any holder of Securities or to any
other person with respect to any action taken or omitted to be taken by it in
good faith, in accordance with the direction of Security holders given as
provided in Section 6.06, relating to the time, method and place of conducting
any proceeding for any remedy available to it or exercising any trust or power
conferred upon it by this Indenture.
None of the provisions of this Indenture shall be construed as requiring
the Trustee to expend or risk its own funds or otherwise to incur any personal
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 10.03. Within 90 days after the occurrence thereof, the Trustee
shall give to the holders of the Securities of a series, as provided in
subdivision (c) of Section 9.01, notice of each default with respect to the
Securities of such series known to the Trustee, unless such default shall have
been cured before the giving of such notice (the term "default" for the purposes
of Section 10.01(m) and this Section 10.03 being hereby defined to be the events
specified in Section 6.01, which are, or after notice or lapse of time or both
would become, events of default as defined in said Section); but, unless such
default be the failure to pay the principal of, or premium, if any, or interest
on any of the Securities of such series when and as the same shall become
payable, or to make any sinking fund payment as to Securities of the same
series, the Trustee shall be protected in withholding such notice, if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the holders of the
Securities of such series.
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SECTION 10.04. The Trustee, or any successor to it hereafter appointed, may
at any time resign and be discharged of the trusts hereby created with respect
to any one or more or all series of Securities by giving to the Company notice
in writing and by mailing notice thereof to the holders of Securities of such
series at their addresses as the same shall then appear in the register of the
Company. Such resignation shall take effect upon the appointment of a successor
Trustee and the acceptance of such appointment by such successor Trustee. Any
Trustee hereunder may be removed with respect to any series of Securities at any
time by the filing with such Trustee and the delivery to the Company of an
instrument or instruments in writing signed by the holders of a majority in
principal amount of the Securities of such series then outstanding, specifying
such removal and the date when it shall become effective.
Upon its resignation or removal, any Trustee shall be entitled to the
payment of reasonable compensation for the services rendered hereunder by such
Trustee and to the payment of all reasonable expenses incurred hereunder and all
moneys then due to it hereunder. The Trustee's rights to indemnification
provided in Section 10.01(a) shall survive its resignation or removal.
SECTION 10.05. There shall at all times be a Trustee under this Indenture,
and such Trustee shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State, in good
standing and having an office in the Borough of Manhattan, The City of New York,
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by Federal or State authority and which
has a combined capital and surplus of not less than $25,000,000. For the
purposes of this Section 10.05, the combined capital and surplus of any such
Trustee shall be deemed to be the combined capital and surplus as set forth in
the most recent report of its condition published by such Trustee, provided that
such reports are published at least annually, pursuant to law or to the
requirements of a Federal or State supervising or examining authority. If such
Trustee or any successor shall at any time cease to have the qualifications
prescribed in this Section 10.05, it shall promptly resign as Trustee hereunder.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as trustee
upon the Securities.
SECTION 10.06. The Trustee shall be subject to the provisions of Section
310(b) of the Trust Indenture Act of 1939 during the period of time provided for
therein. In determining whether the Trustee has a conflicting interest as
defined in Section 310(b) of the Trust Indenture Act of 1939 with respect to the
Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) the Securities of every
other series issued under this Indenture. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act of 1939.
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SECTION 10.07. In case at any time the Trustee shall resign, or shall be
removed (unless the Trustee shall be removed as provided in subdivision (c) of
Section 10.06, in which event the vacancy shall be filled as provided in said
subdivision), or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or if a receiver of the Trustee or of its property shall
be appointed, or if any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation with respect to the Securities of one or more
series, a successor Trustee with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
series) may be appointed by the holders of a majority in principal amount of the
Securities of that or those series then Outstanding, by an instrument or
instruments in writing signed in duplicate by such holders and filed, one
original thereof with the Company and the other with the successor Trustee; but,
until a successor Trustee shall have been so appointed by the holders of
Securities of that or those series as herein authorized, the Company by a
resolution of its Board of Directors, or, in case all or substantially all the
assets of the Company shall be in the possession of one or more custodians or
receivers lawfully appointed, or of trustees in bankruptcy or reorganization
proceedings (including a trustee or trustees appointed under the provisions of
the Federal bankruptcy laws, as now or hereafter constituted), or of assignees
for the benefit of creditors, such receivers, custodians, trustees or assignees,
as the case may be, by an instrument in writing, shall appoint a successor
Trustee with respect to the Securities of such series. Subject to the provisions
of Sections 10.04, 10.05 and 10.06, upon the appointment as aforesaid of a
successor Trustee with respect to the Securities of any series, the Trustee with
respect to the Securities of such series shall cease to be Trustee hereunder.
After any such appointment other than by the holders of Securities of that or
those series the person making such appointment shall forthwith cause notice
thereof to be mailed to the holders of Securities of such series at their
addresses as the same shall then appear on the register of the Company; but any
successor Trustee with respect to the Securities of such series so appointed
shall, immediately and without further act, be superseded by a successor Trustee
appointed by the holders of Securities of such series in the manner above
prescribed, if such appointment be made prior to the expiration of one year from
the date of the mailing of such notice by the Company, or by such receivers,
trustees or assignees.
If any Trustee with respect to the Securities of one or more series shall
resign because of conflict of interest as provided in subdivision (a) of Section
10.06 and a successor Trustee shall not have been appointed by the Company or by
the holders of the Securities of such series or, if any successor Trustee so
appointed shall not have accepted its appointment within 30 days after such
appointment shall have been made, the resigning Trustee may apply to any court
of competent jurisdiction for the appointment of a successor Trustee. If in any
other case a successor Trustee shall not be appointed pursuant to the foregoing
provisions of this Section 10.07 within three months after such appointment
might have been made hereunder, the holder of any Security of the applicable
series or any retiring Trustee may apply to any court of competent jurisdiction
to appoint a successor Trustee. Such court may thereupon, in any such case,
after such notice, if any, as such court may deem proper and prescribe, appoint
a successor Trustee.
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Any successor Trustee appointed hereunder with respect to the Securities of
one or more series shall execute, acknowledge and deliver to its predecessor
Trustee and to the Company, or to the receivers, trustees, assignees or court
appointing it, as the case may be, an instrument accepting such appointment
hereunder, and thereupon such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations with respect to such series of such
predecessor Trustee with like effect as if originally named as Trustee
hereunder, and such predecessor Trustee, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to pay over, and
such successor Trustee shall be entitled to receive, all moneys and properties
held by such predecessor Trustee as Trustee hereunder. Nevertheless, on the
written request of the Company or of the successor Trustee or of the holders of
at least 10% in principal amount of the Securities of such series then
outstanding, such predecessor Trustee, upon payment of its said charges and
disbursements, shall execute and deliver an instrument transferring to such
successor Trustee upon the trusts herein expressed all the rights, powers and
trusts of such predecessor Trustee and shall assign, transfer and deliver to the
successor Trustee all moneys and properties held by such predecessor Trustee;
and, upon request of any such successor Trustee, the Company shall make,
execute, acknowledge and deliver any and all instruments in writing for more
fully and effectually vesting in and confirming to such successor Trustee all
such authority, rights, powers, trusts, immunities, duties and obligations.
SECTION 10.08. Any corporation into which the Trustee or any successor to
it in the trusts created by this Indenture shall be merged or converted, or any
corporation with which it or any successor to it shall be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee or any such successor to it shall be a party, or any corporation to
which the Trustee or any successor to it shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Trustee, shall be the
successor Trustee under this Indenture without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case at
the time such successor to the Trustee shall succeed to the trusts created by
this Indenture with respect to one or more series of Securities, any of such
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Securities so authenticated; and in case at that time
any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or
in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
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SECTION 10.09. If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act of 1939 regarding the collection of
claims against the Company (or any such other obligor).
SECTION 10.10. Subject to Section 10.02, and subject to the provisions of
Section 15.03 with respect to the certificates required thereby, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate with respect thereto delivered to the
Trustee, and such Officers' Certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 11.01. This Indenture shall upon request of the Company cease to be
of further effect with respect to Securities of any series (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series and replacement of lost, stolen or mutilated Securities of such series
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(a) either
(1) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.06 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 5.03) have been
delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee for
cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(b) the Company has paid or cause to be paid all other sums payable
hereunder with respect to such series by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 10.01(a) and, if money
shall have been deposited with the Trustee pursuant to subclause (2) of clause
(a) of this Section, the obligations of the Trustee under Sections 5.03 and
11.02 shall survive.
SECTION 11.02. The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.02. In addition to discharge of this Indenture pursuant to Sections
11.01 and 11.03, in the case of any series of Securities with respect to which
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, as certified pursuant to
subparagraph (a) of Section 11.04 can be determined at the time of making the
deposit referred to in such subparagraph (a), the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Securities of such
series as provided in this Section on and after the date the conditions set
forth in Section 11.04 are satisfied, and the provisions of this Indenture with
respect to the Securities of such series shall no longer be in effect (except as
to (i) rights of registration of transfer and exchange of Securities of such
series, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (iii) rights of holders of Securities of such series
to receive, solely from the trust fund described in subparagraph (a) of Section
11.04, payments of principal thereof and interest, if any, thereon upon the
original stated due dates therefor (but not upon acceleration), and remaining
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rights of the holders of Securities of such series to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) this Section 11.02 and (vi) the rights of the holders
of Securities of such series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them)
(hereinafter called "Defeasance"), and the Trustee at the cost and expense of
the Company, shall execute proper instruments acknowledging the same.
SECTION 11.03. In the case of any series of Securities with respect to
which an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, as certified pursuant to
subparagraph (a) of Section 11.04 can be determined at the time of making the
deposit referred to in such subparagraph (a), (i) the Company shall be released
from its obligations under any covenants specified in or pursuant to this
Indenture (except as to (A) rights of registration of transfer and exchange of
Securities of such series, (B) substitution of mutilated, defaced, destroyed,
lost or stolen Securities of such series, (C) rights of holders of Securities of
such series to receive, from the Company pursuant to Section 5.01, payments of
principal thereof and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and mandatory sinking fund payments,
if any, (D) the rights, obligations, duties and immunities of the Trustee
hereunder and (E) the rights of holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (ii) the occurrence of any event specified in
Section 6.01(d) (with respect to any of the covenants specified in or pursuant
to this Indenture) and 6.01(g) shall be deemed not to be or result in an event
of default, in each case with respect to the Outstanding Securities of such
series on or after the date the conditions set forth in Section 11.04 are
satisfied (hereinafter called "Covenant Defeasance"), and the Trustee, at the
cost of the Company, shall execute proper instruments acknowledging the same.
For this purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant (to the extent to specified in the
case of Section 6.01(d)), whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document, but
the remainder of this Indenture and the Securities of such series shall be
unaffected thereby.
SECTION 11.04. The following shall be the conditions to application of
their Sections 11.02 and 11.03 to the Outstanding Securities of any series:
(a) with reference to Section 11.02 or 11.03, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the holders of Securities of such series (i) cash in an amount, or
(ii) U.S. Government Obligations maturing as to principal and interest, if any,
at such times and in such amounts as will insure the availability of cash, or
(iii) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge (A) the principal of and interest, if any, on all
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Securities of such series on each date that such principal or interest, if any,
is due and payable, and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of this
Indenture and the Securities of such series;
(b) in the case of Defeasance under Section 11.02, the Company has
delivered to the Trustee an Opinion of Counsel based on the fact that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the holders of the Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit, Defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
Defeasance and discharge had not occurred;
(c) in the case of Covenant Defeasance under Section 11.03, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that, and such
opinion shall confirm that, the holders of the Securities of such series will
not recognize income, gain or loss for United States federal income tax purposes
as a result of such deposit and Covenant Defeasance and will be subject to the
United States federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit and Covenant
Defeasance had not occurred;
(d) no event of default or event which with notice or lapse of time or both
would become an event of default shall have occurred or be continuing on the
date of the deposit referred to in subparagraph (a);
(e) such Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any agreement or instrument to
which the Company is a party or by which it is bound; and
(f) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with.
SECTION 11.05. Subject to the provisions of the last paragraph of Section
5.03, all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 11.04 shall be held in trust, and such money and all money
from such U.S. Government Obligations shall be applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any paying agent (including the Company acting as its own
paying agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
and U.S. Government Obligations has been deposited with the Trustee.
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SECTION 11.06. The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.04 or the principal or interest
received in respect of such obligations other than any such tax, fee or other
charge that by law is for the account of the holders of Outstanding Securities.
SECTION 11.07. Notwithstanding the foregoing provisions of this Article
Eleven, if the Securities of any series are payable in a coin or currency or
currency unit other than such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public or private
debts, the coin or currency or currency unit or the nature of the government
obligations to be deposited with the Trustee under the foregoing provisions of
this Article Eleven shall be as set forth in the Officers' Certificate or
established in the supplemental indenture under which the Securities of such
series are issued.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. No recourse shall be had for the payment of the principal
of, or the premium, if any, or interest on, any Security or for any claim based
thereon or otherwise in respect thereof or of the indebtedness represented
thereby, or upon any obligation, covenant or agreement of this Indenture,
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 constitutional provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, 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, because of the
incurring of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Securities or to be implied herefrom or therefrom, and that all
liability, if any, of that character against every such incorporator,
stockholder, officer and director is, by the acceptance of the Securities and as
a condition of, and as part of the consideration for, the execution of this
Indenture and the issue of the Securities expressly waived and released.
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ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. Without the consent of any Securityholders, the Company
(when authorized by resolution of its Board of Directors) and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any one or more of
or all the following purposes:
(a) to evidence the succession of another corporation to the Company and
the assumption by any such successor of the covenants of the Company contained
therein and in the Securities, pursuant to Section 5.04;
(b) to add to the covenants of the Company for the benefit of the holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of one or more specified series)
or to surrender any right or power herein conferred upon the Company;
(c) to add any additional Events of Default;
(d) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only when
there is no Security of any series Outstanding created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
(e) to secure the Securities;
(f) to establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 2.02;
(g) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 10.07; or
(h) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided such action shall not adversely affect the interests of the holders of
Securities of any series in any material respect.
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Subject to the provisions of Section 13.03, the Trustee is authorized to
join with the Company in the execution of any such supplemental indenture, to
make the further agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
SECTION 13.02. With the consent (evidenced as provided in Article Seven) of
the holders of not less than a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, the Company,
when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the holders of
Securities of such series under this Indenture; provided that no such
supplemental indenture shall, without the consent of the holder of each
Outstanding Security affected thereby:
(a) change the Stated Majority of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon (including any change in the floating or
adjustment rate provision pursuant to which such rate is determined that would
reduce that rate for any period) or any premium payable upon the redemption
payable upon the redemption thereof, or change any place of payment where, or
the coin or currency in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date) or modify the provisions of this
Indenture with respect to the subordination of the Securities in a manner
adverse to the Securityholders;
(b) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose holders is required for any supplemental
indenture, or the consent of whose holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture; or
(c) modify any of the provisions of this Section or Section 6.06, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the holder of each
Outstanding Security affected thereby; provided that this clause shall not be
deemed to require the consent of any holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section or the
deletion of this proviso, in accordance with the requirements of Sections 10.07
and 13.01(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included for the benefit of
one or more particular series of Securities, or which modifies the rights of the
holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
holders of Securities of any other series.
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It shall not be necessary for any act of holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such act shall approved the substance thereof.
SECTION 13.03. In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereof of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 10.02) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 13.04. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article Thirteen, this Indenture shall be and be deemed
to be modified and amended in accordance therewith and, except as herein
otherwise expressly provided, the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of all of the Securities or of the Securities of any
series affected, as the case may be, shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 13.05. Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article
Thirteen may bear a notation in a form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities then outstanding in equal
aggregate principal amounts, and such exchange shall be made without cost to the
holders of the Securities.
SECTION 13.06. Every supplemental indenture executed pursuant to the
provisions of this Article Thirteen shall conform to the requirements of the
Trust Indenture Act of 1939 as then in effect.
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ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. The Company covenants and agrees that, except to the extent
otherwise provided for pursuant to Section 2.02, the indebtedness evidenced by
the Securities of each series is subordinate and junior in right of payment to
all Senior Indebtedness to the extent provided herein, and each holder of
Securities of each series, by his acceptance thereof, likewise covenants and
agrees to the subordination herein provided and shall be bound by the provisions
hereof. Senior Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of these subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness.
In the event that the Company shall default in the payment of any principal
of, or premium, if any, or interest on any Senior Indebtedness when the same
becomes due and payable after any applicable grace period, whether at maturity
or at a date fixed for prepayment or by declaration or otherwise, then, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, securities, by set-off
or otherwise) shall be made or agreed to be made on account of the principal of,
or premium, if any, or interest on any of the Securities, or in respect of any
redemption, retirement or other acquisition of any of the Securities, except
that Securityholders may receive and retain (i) securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any plan of reorganization
or readjustment and (ii) payments made from a defeasance trust created pursuant
to Article Eleven.
In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to the Company,
its creditors or its property;
(b) any proceeding for the liquidation, dissolution or other winding up of
the Company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings;
(c) any assignment by the Company for the benefit of creditors; or
(d) any other marshalling of the assets of the Company,
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all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any holder of any of the Securities on account thereof (except as
otherwise permitted by the next succeeding sentence). Any payment or
distribution, whether in cash, securities or other property (other than (i)
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any plan of reorganization or readjustment and (ii) payments made
from a defeasance trust created pursuant to Article Eleven), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character on any Security, whether in cash, securities or
other property (other than (i) securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or readjustment
and (ii) payments made from a defeasance trust created pursuant to Article
Eleven), shall be received by the Trustee or any holder of Securities in
contravention of any of the terms hereof such payment or distribution or
security shall be received in trust for the benefit of, and shall be paid over
or delivered or transferred to, the holder of the Senior Indebtedness at the
time outstanding in accordance with the priorities then existing among such
holders for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In
the event of the failure of the Trustee or any holder of Securities to endorse
or assign any such payment, distribution or security, each holder of Senior
Indebtedness is hereby irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Indebtedness shall be prejudiced
in the right to enforce subordination of the indebtedness evidenced by the
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the holders of
Securities of each series, the obligation of the Company to pay such holders of
Securities the principal of and premium, if any, and interest on such Securities
or prevent the Trustee or the holder of Securities from exercising all rights,
powers and remedies otherwise permitted by applicable law or hereunder upon the
occurrence of an event of default hereunder, all subject to the rights of the
holders of the Senior Indebtedness to receive cash, securities or other property
otherwise payable or deliverable to the holders of Securities.
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Senior Indebtedness shall not be deemed to have been paid in full unless
the holders thereof shall have received cash, securities or other property equal
to the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the holders of Securities of each series shall
be subrogated to all rights of any holders of Senior Indebtedness to receive any
further payments or distributions applicable to the Senior Indebtedness unless
the indebtedness evidenced by the Securities of such series shall have been paid
in full, and such payments or distributions received by such holders of
Securities, by reason of such subrogation, of cash, securities or other property
which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such holders of Securities,
on the other hand, be deemed to be a payment by the Company on account of Senior
Indebtedness, and not on account of the Securities of such series.
The Trustee and holders of Securities will take such action (including,
without limitation, the delivery of this Indenture to an agent for the holders
of Senior Indebtedness or consent to the filing of a financing statement with
respect thereto) as may, in the opinion of counsel designated by the holders of
a majority in principal amount of the Senior Indebtedness at the time
outstanding, be necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.
SECTION 14.02. Upon any payment or distribution of assets of the Company
referred to in this Article Fourteen, the Trustee and the holders of Securities
shall be entitled to rely upon an order or decree made by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of
the trustee in bankruptcy, receiver, assignee for the benefit of creditors or
other persons making such payment or distribution, delivered to the Trustee or
to the holders of Securities, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fourteen. In the absence of any such bankruptcy
trustee, receiver, assignee or other person, the Trustee shall be entitled to
rely upon a written notice by a Person representing himself to be the holder of
Senior Indebtedness (or a trustee or representative on behalf of such holder) as
evidence that such Person is a holder of Senior Indebtedness (or is such a
trustee or representative). In the event that the Trustee determines, in good
faith, that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payments or
distributions pursuant to this Article Fifteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, as to the extent to which
such person is entitled to participate in such payment or distribution, and as
to other facts pertinent to the rights of such person under this Article
Fourteen, and if such evidence is not furnished, the Trustee may refuse to offer
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 Indebtedness.
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SECTION 14.03. Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in any of the Securities shall prevent (a) the Company, at any
time except during the pendency of any dissolution, winding up, liquidation or
reorganization proceedings referred to in, or under the conditions described in,
Section 14.01, from making payments at any time of the principal of or premium,
if any, or interest on the Securities or (b) the application by the Trustee or
any paying agent of any monies deposited with it hereunder to payments of the
principal of or premium, if any, or interest on the Securities if, at the time
of such deposit, the Trustee or such paying agent, as the case may be, did not
have the written notice provided for in Section 14.04 of any event prohibiting
the making of such deposit, or if, at the time of such deposit (whether or not
in trust) by the Company with the Trustee or any paying agent (other than the
Company) such payment would not have been prohibited by the provisions of this
Article, and the Trustee or any paying agent shall not be affected by any notice
to the contrary received by it on or after such date.
SECTION 14.04. Anything in this Article Fourteen or elsewhere in this
Indenture contained to the contrary notwithstanding, the Trustee shall not at
any time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies hereunder to or by the Trustee and
shall be entitled conclusively to assume that no such facts exist and that no
event specified in Section 14.01 has happened, until the Trustee shall have
received an Officers' Certificate to that effect or notice in writing to that
effect signed by or on behalf of the holders or holders, or their
representatives, of Senior Indebtedness who shall have been certified by the
Company or otherwise established to the reasonable satisfaction of the Trustee
to be such holder or holders or representatives or from any trustee under any
indenture pursuant to which such Senior Indebtedness shall be outstanding;
provided that, if prior to the third business day preceding the date upon which
by the terms hereof any monies become payable hereunder (including, without
limitation, the payment of either the principal of or premium, if any, or
interest on any Security), or in the event of the execution of an instrument
pursuant to Section 11.01 acknowledging satisfaction and discharge of this
Indenture, then if prior to the second business day preceding the date of such
execution, the Trustee or any paying agent shall not have received with respect
to such monies the Officers' Certificate or notice provided for in this Section
14.04, then, anything herein contained to the contrary notwithstanding, the
Trustee or such paying agent shall have full power and authority to receive such
monies and 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. The Company shall give prompt written notice to the Trustee and
to the paying agent of any facts known to the Company which would prohibit the
payment of monies to or by the Trustee or any paying agent.
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SECTION 14.05. Each holder of Securities by his acceptance thereof
authorizes and directs the Trustee in his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as between such holder
of Securities and holders of Senior Indebtedness, as provided in this Article
Fourteen, and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 14.06. The Trustee shall be entitled to all the rights set forth in
this Article Fourteen with respect to any Senior Indebtedness which may at the
time be held by it, to the same extent as any other holder of Senior
Indebtedness; provided that nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder; and provided further that nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 10.01(a).
SECTION 14.07. In case at any time any paying agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Fourteen shall in such case (unless the
context shall otherwise require) be construed as extending to and including such
paying agent within its meaning as fully for all intents and purposes as if the
paying agent were named in this Article Fourteen in addition to or in place of
the Trustee; provided, however, that Sections 14.04 and 14.06 shall not apply to
the Company or any affiliate of the Company if the Company or such affiliate
acts as paying agent.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Subject to the provisions of Section 5.04, nothing contained
in this Indenture or in the Securities shall be deemed to prevent the
consolidation or merger of the Company with or into any other corporation, or
the merger into the Company of any other corporation, or the sale or lease by
the Company of its property and assets as, or substantially as, an entirety, or
otherwise. Upon any consolidation or merger, or any sale other than for cash or
lease of all or substantially all of the assets of the Company in accordance
with the provisions of Section 5.04, the corporation formed by such
consolidation or into which the Company shall have been merged or to which such
sale or lease shall have been made shall succeed to and be substituted for the
Company with the same effect as if it had been named herein as a party hereto,
and thereafter from time to time such corporation may exercise each and every
right and power of the Company under this Indenture, in the name of the Company
or in its own name; and any act or proceeding by any provision of this Indenture
required or permitted to be done by the Board of Directors or any officer of the
Company may be done with like force and effect by the like board or officer of
any corporation that shall at the time be the successor of the Company
hereunder. In the event of any such sale or conveyance, but not any such lease,
the Company (or any successor corporation which shall theretofore have become
such in the manner described in Section 5.04) shall be discharged from all
obligations and covenants under this Indenture and the Securities and may
thereupon be dissolved and liquidated.
57
<PAGE>
SECTION 15.02. Nothing in this Indenture expressed and nothing that may be
implied from any of the provisions hereof is intended, or shall be construed, to
confer upon, or to give to, any person or corporation other than the parties
hereto and their successors and the holders of the Securities any right, remedy
or claim under or by reason of this Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all covenants, conditions,
stipulations, promises and agreements in this Indenture contained shall be for
the sole and exclusive benefit of the parties hereto and their successors and of
the holders of the Securities.
SECTION 15.03. As evidence of compliance with the conditions precedent
provided for in this Indenture (including any covenants compliance with which
constitutes a condition precedent) which relate to the authentication and
delivery of any Securities, to the satisfaction and discharge of this Indenture
or to any other action to be taken by the Trustee at the request or upon the
application of the Company, the Company will furnish to the Trustee an Officers'
Certificate, stating that such conditions precedent have been complied with and
an Opinion of Counsel stating that in the opinion of such Counsel such
conditions precedent have been complied with.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such condition or covenant;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition or
covenant has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee, before
granting any application by the Company or taking or refraining from taking any
other action in reliance thereon, may require any further evidence or make any
further investigation as to the facts or matters stated therein which it may, in
good faith, deem reasonable in the circumstances, and in connection therewith
the Trustee may examine or cause to be examined the pertinent books, records and
premises of the Company or of any Subsidiary; and the Trustee shall, in any such
case, require such further evidence or make such further investigation as may be
requested by the holders of a majority in principal amount of the Securities
then outstanding; provided that, if payment to the Trustee of the costs,
expenses and liabilities likely to be incurred by it in making such
investigation is not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee before making such
investigation may require reasonable indemnity against such costs, expenses or
liabilities. Any further evidence which may be requested by the Trustee pursuant
to any of the provisions of this paragraph shall be furnished by the Company at
its own expense; and any cost, expenses and liabilities incurred by the Trustee
pursuant to any of the provisions of this paragraph shall be paid by the
Company, or, if paid by
58
<PAGE>
the Trustee, shall be repaid by the Company, upon demand, with interest at the
lowest rate born by the Securities of any series but in no event less than 5%,
and, until such repayment, shall be secured by a lien on any moneys held by the
Trustee hereunder prior to any rights therein of the holders of Securities.
SECTION 15.04. All Securities paid, redeemed, exchanged, surrendered for
registration of transfer or retired pursuant to a sinking fund or otherwise
shall, if surrendered to the Company or to any paying agent, be delivered to the
Trustee for cancellation and shall be cancelled by it or, if surrendered to the
Trustee, shall be cancelled by it, and, except as otherwise provided in Sections
2.05, 2.06, 2.07, 2.08, 4.02 and 13.05, no Securities shall be issued under the
Indenture in lieu thereof. The Trustee shall make appropriate notations in its
records in respect of all such Securities and may, but shall not be obligated
to, destroy such Securities. If the Trustee shall destroy any such Securities it
shall deliver a certificate of such destruction to the Company. If the Company
shall acquire any of the Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation.
SECTION 15.05. If any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required to
be included in this Indenture by any of the provisions of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 15.06. Whenever action is required by this Indenture by the Board
of Directors of the Company and there is at the time constituted a committee of
the Board of Directors duly authorized to take such action, or a committee of
officers or other representatives of the Company so authorized by the Board of
Directors, such action by such a committee shall be deemed to be the action of
the Board of Directors and shall be sufficient for all purposes of this
Indenture where action by the Board of Directors is specified.
SECTION 15.07. Any notice or demand authorized by this Indenture to be
given to the Company shall be sufficiently given for all purposes if it shall be
sent by registered mail to the Company addressed to it at 388 Greenwich Street,
New York, New York 10013 to the attention of its General Counsel or at such
other address, as may have been furnished in writing to the Trustee by the
Company. Any notice, direction, request or demand to or upon the Trustee shall
be sufficiently given, for all purposes, if it is given or made in writing to
the Corporate Trust Office. Any notice required or permitted to be given to
Securityholders shall be sufficiently given if given by first class mail,
postage prepaid, to such holders at their addresses as the same shall appear on
the register of the Company.
59
<PAGE>
SECTION 15.08. In any case where the date of maturity of interest on or
principal of the Securities or the date fixed for redemption of any Securities
shall not be a business day, then payment of interest, principal and premium, if
any, may be made on the next succeeding business day with the same force and
effect as if made on the date of maturity and no interest shall accrue for the
period after such date.
SECTION 15.09. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 15.10. This Indenture and each Security shall be deemed to be a
contract made under the law of the State of New York, and for all purposes shall
be construed in accordance with the law of said State.
60
<PAGE>
IN WITNESS WHEREOF, TRAVELERS GROUP INC. has caused this Indenture to be
executed in its corporate name by one of its officers thereunto duly authorized,
and its corporate seal to be hereunto affixed and to be attested by its
Secretary or one of its Assistant Secretaries, and THE FIRST NATIONAL BANK OF
CHICAGO has caused this Indenture to be executed in its corporate name by one of
its officers thereunto duly authorized, and its corporate seal to be hereunto
affixed and to be attested by one of its authorized officers, all as of July 17,
1998.
TRAVELERS GROUP INC.
By: /s/ Robert Matza
----------------------------
Name: Robert Matza
Title: Treasurer
[CORPORATE SEAL]
Attest:
By: /s/ Shelley J. Dropkin
----------------------------------
Name: Shelley J. Dropkin
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Mary R. Fonti
-----------------------------------
Name: Mary R. Fonti
Title: Assistant Vice President
[CORPORATE SEAL]
Attest:
By: /s/ Glenn E. Mitchell
--------------------------------------
Name: Glenn E. Mitchell
Title: Vice President
61
<PAGE>
STATE OF NEW YORK.)
:ss.:
COUNTY OF NEW YORK)
On the 17th day of July, in the year 1998, before me personally came
Robert Matza, to me known, who, being by me duly sworn, did depose and say
that he resides at 4 Brookfield Lane, Scarsdale, NY 10583; that he is a(n)
Treasurer of TRAVELERS GROUP INC., one of the corporations described in and
which executed the foregoing instrument, that he knows the seal of said
corporation, that the seal affixed to said instrument bearing the corporate
name of said corporation 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.
By: /s/ Maria T. Santiago
[NOTARIAL SEAL]
62
<PAGE>
STATE OF NEW YORK.)
:ss.:
COUNTY OF NEW YORK)
On the 17th day of July, in the year 1998, before me personally came
Mary R. Fonti, to me known, who, being by me duly sworn, did depose and
say that she resides at 1681 West 8 St., Brooklyn, NY 11223; that she is
a(n) Assistant Vice President of THE FIRST NATIONAL BANK OF CHICAGO, one of the
corporations described in and which executed the foregoing instrument, that she
knows the seal of said corporation, that the seal affixed to said instrument
bearing the corporate name of said corporation is such corporate seal; that it
was so affixed by authority of the Board of Directors of said corporation; and
that she signed her name thereto by like authority.
By: /s/ Mark E. Davis
[NOTARIAL SEAL]
63
<PAGE>
Exhibit 25.02
Registration No. 333-51201
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) X
------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
------------------------
Travelers Group Inc.
(Exact name of obligors as specified in their trust agreements)
Delaware 52-1568099
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
388 Greenwich Street
New York, New York 10013
(Address of principal executive offices) (Zip Code)
Subordinated Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 10th day of July,
1998.
The First National Bank of Chicago,
Trustee
By /s/ Steven M. Wagner
--------------------------------
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
July 10, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture of Travelers Group Inc. to
The First National Bank of Chicago, as Trustee, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ Steven M. Wagner
---------------------------
Steven M. Wagner
First Vice President
4
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date:
03/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for March 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
----
ASSETS
<S> <C> <C> <C> <C> <C>
1 Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) ...... 0081 4,141,168 1.a
b. Interest-bearing balances(2) ............................... 0071 5,142,787 1.b
2 Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) .. 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 7,819,811 2.b
3 Federal funds sold and securities purchased under agreements to
resell 1350 5,619,157 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule .... RCFD
RC-C) ......................................................... 2122 26,140,376 4.a
b. LESS: Allowance for loan and lease losses .................. 3123 417,371 4.b
c. LESS: Allocated transfer risk reserve ...................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and ... RCFD
reserve (item 4.a minus 4.b and 4.c) ....................... 2125 25,723,005 4.d
5 Trading assets (from Schedule RD-D) ............................. 3545 5,795,159 5.
6 Premises and fixed assets (including capitalized leases) ........ 2145 757,033 6.
7 Other real estate owned (from Schedule RC-M) .................... 2150 6,547 7.
8 Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ................................ 2130 135,327 8.
9 Customers' liability to this bank on acceptances outstanding .... 2155 512,763 9.
10 Intangible assets (from Schedule RC-M) .......................... 2143 261,456 10.
11 Other assets (from Schedule RC-F) ............................... 2160 2,223,495 11.
12 Total assets (sum of items 1 through 11) ........................ 2170 58,137,708 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and posted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date:
03/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page
RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
-------------------
LIABILITIES
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) ............................... 2200 21,551,932 13.a
(1) Noninterest-bearing(1) ................................ 6631 9,361,049 13.a1
(2) Interest-bearing ...................................... 6636 12,190,883 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and .. RCFN
IBFs (from Schedule RC-E, part II) ........................ 2200 14,511,110 13.b
(1) Noninterest bearing ................................... 6631 604,859 13.b1
(2) Interest-bearing ...................................... 6636 13,906,251 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: ............................................... RCFD 2800 3.887,022 14
15. a. Demand notes issued to the U.S. Treasury .................. RCON 2840 63,092 15.a
b. Trading Liabilities(from Sechedule RC-D) RCFD 3548 5,918,194 15.b
16. Other borrowed money: ........................................ RCFD
a. With original maturity of one year or less ................ 2332 3,134,696 16.a
b. With original maturity of more than one year ............. A547 381,681 16.b
c. With original maturity of more than three years ........... A548 326,551 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ...... 2920 512,763 18.
19. Subordinated notes and debentures ............................ 3200 2,000,000 19.
20. Other liabilities (from Schedule RC-G) ....................... 2930 1,163,747 20.
21. Total liabilities (sum of items 13 through 20) ............... 2948 53,450,788 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ................ 3838 0 23.
24. Common stock ................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ..... 3839 3,107,585 25.
26. a. Undivided profits and capital reserves .................... 3632 1,359,598 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ................................................ 8434 18,975 26.b
27. Cumulative foreign currency translation adjustments .......... 3284 (96) 27.
28. Total equity capital (sum of items 23 through 27) ............ 3210 4,686,920 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ........................ 3300 58,137,708 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of -------------
the statement below that best describes the most Number
comprehensive level of auditing work performed for 2 M.1.
the bank by independent external auditors as of -------------
any date during 1996....................... RCFD 6724
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4.= Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- -------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
