<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
WILMINGTON TRUST CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 51-0328154
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
</TABLE>
RODNEY SQUARE NORTH
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890
(302) 651-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
THOMAS P. COLLINS, ESQUIRE
WILMINGTON TRUST CORPORATION
RODNEY SQUARE NORTH
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890
(302) 651-1693
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
with copies to:
JEREMY T. ROSENBLUM, ESQUIRE
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
1735 MARKET STREET, 51ST FLOOR
PHILADELPHIA, PENNSYLVANIA 19103
(215) 665-8500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the Registration Statement becomes effective.
------------------------
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 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. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED AMOUNT TO BE REGISTERED AGGREGATE OFFERING PRICE(1) REGISTRATION FEE(2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Unsecured Debt Securities........... $225,000,000 $225,000,000 $66,375.00
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the registration fee.
(2) Pursuant to Rule 457(o), the registration fee is calculated on the basis of
the proposed aggregate maximum offering price of the Unsecured Debt
Securities.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION DATED , 1998
PROSPECTUS SUPPLEMENT [LOGO]
(TO PROSPECTUS DATED , 1998)
$125,000,000
WILMINGTON TRUST CORPORATION
% SUBORDINATED NOTES DUE 2008
The % Subordinated Notes due 2008 (the "Notes") will mature on
, 2008. Interest on the Notes is payable semiannually in arrears on
and , beginning , 1998. The Notes may not be
redeemed prior to their stated maturity and will not be subject to any sinking
fund.
The Notes will be unsecured and subordinated to Senior Indebtedness and
General Obligations of Wilmington Trust Corporation (the "Company") as described
herein. Payment of the principal of the Notes may be accelerated only in the
case of certain events involving the bankruptcy, insolvency or reorganization of
the Company. There is no right of acceleration in the case of a default in the
payment of principal of, premium, if any, or interest on the Notes or the
performance of any covenant of the Company in the Subordinated Indenture or in
the Notes. See "Subordinated Securities -- Limited Right of Acceleration" in the
prospectus accompanying this Prospectus Supplement (the "Base Prospectus").
The Notes will be represented by Global Securities registered in the name
of the nominee of The Depository Trust Company ("DTC"). Interests in the Global
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by DTC and its direct and indirect participants.
Except as described herein, Notes in definitive form will not be issued.
Settlement for the Notes will be made in immediately available funds. The Notes
will trade in DTC's Same-Day Funds Settlement System until maturity, and
secondary market trading activity in the Notes will therefore settle in
immediately available funds. So long as the Notes are represented by the Global
Securities, all payments of principal and interest on the Notes will be made by
the Company in immediately available funds.
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF THE COMPANY, AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL
AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE BASE PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
=========================================================================================================
PROCEEDS TO
PRICE TO PUBLIC(1) UNDERWRITING DISCOUNT COMPANY(1)(2)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Note.................... % % %
- ---------------------------------------------------------------------------------------------------------
Total....................... $ $ $
=========================================================================================================
</TABLE>
(1) Plus accrued interest, if any, from , 1998 to date of delivery.
(2) Before deduction of expenses payable by the Company, estimated to be
$ .
The Notes are offered subject to receipt and acceptance by the
Underwriters, to prior sale and to the Underwriters' right to reject any order
in whole or in part and to withdraw, cancel or modify the offer without notice.
It is expected that delivery of the Notes will be made in book-entry form only
through the facilities of DTC, on or about , 1998, against payment
therefor in immediately available funds.
SALOMON SMITH BARNEY KEEFE, BRUYETTE AND WOODS, INC.
, 1998.
<PAGE> 3
CERTAIN PERSONS PARTICIPATING IN THE OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE NOTES, INCLUDING
STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH SECURITIES, AND THE
IMPOSITION OF A PENALTY BID IN CONNECTION WITH THE OFFERING. FOR A DESCRIPTION
OF THESE ACTIVITIES, SEE "UNDERWRITING."
WILMINGTON TRUST CORPORATION
The Company is the holding company of Wilmington Trust Company ("WTC"), a
Delaware-chartered bank and trust company, and is also the holding company of a
Pennsylvania-chartered bank and trust company and a Federal savings bank with
banking offices in Maryland and Florida (together with WTC, the "Banks"). WTC is
the largest full-service bank headquartered in Delaware and one of the nation's
largest personal trust companies. At December 31, 1997, WTC had over $100
billion in assets under management or custody on behalf of customers in all 50
states, the District of Columbia and 17 foreign countries. Subsidiaries of WTC
engage in the distribution of mutual funds sponsored by WTC, investment
advising, the sale of securities and insurance and related activities. At
December 31, 1997, the Company had approximately $6.1 billion of total assets,
including approximately $3.9 billion of loans. At the same date, the Company was
well-capitalized, with $541.0 million of qualifying capital for risk-based
capital purposes, representing 12.38% of risk-weighted assets, and $486.3
million of "Tier 1" capital, representing 11.13% of risk-weighted assets and
8.58% of average assets during 1997.
During 1997, the Company reported net income of $106.0 million, or $3.15
per share, a 9% increase over the $97.3 million, or $2.83 per share, reported
for 1996. The improvement in earnings was attributable to growth in both of the
major components of the Company's income. Net interest income increased 7% to
$230.0 million, an increase of $15.8 million over the $214.2 million reported
for 1996. Noninterest revenues (including trust and asset management fees,
service charges on deposit accounts and other operating income) increased 14% to
$157.5 million, an increase of $19.3 million over the $138.2 million reported
for 1996.
During 1997, the Company increased its reserve for loan losses from $54.4
million (1.44% of loans outstanding) to $63.8 million (1.60% of loans
outstanding) and increased its unallocated loan loss reserve from $1.5 million
to $9.0 million. At the same time, the Company reduced by 28% the total dollar
amount of loans past due 90 days or more, non-accruing loans and restructured
loans, from $61.2 million (representing 1.62% of total loans) to $44.2 million
(representing 1.11% of total loans). At December 31, 1997, the Company's loan
loss reserves represented 144% of loans past due 90 days or more, non-accruing
loans and restructured loans, compared to 89% at the end of 1996.
The Company is a legal entity separate and distinct from the Banks and
WTC's nonbanking subsidiaries (collectively, the "Affiliates"). Accordingly, the
right of the Company, and thus the right of the Company's creditors and
stockholders, to participate in any distribution of the assets or earnings of
any Affiliate is necessarily subject to the prior claims of creditors of the
Affiliate, except to the extent that claims of the Company in its capacity as a
creditor may be recognized. The principal sources of the Company's revenues
historically have been dividends from the Affiliates. See
"Business -- Regulation -- Dividend Limitations" in the 1997 Form 10-K for a
discussion of restrictions on the payment of dividends by the Banks and the
Company.
The Company was incorporated under Delaware law in 1985. Its executive
offices are located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890 and its telephone number is (302) 651-1000.
S-2
<PAGE> 4
SELECTED HISTORICAL FINANCIAL INFORMATION
The following tables set forth selected historical consolidated financial
information (unaudited) for the Company for the five years ended December 31,
1997. The tables largely have been derived from, and should be read in
conjunction with, the historical financial statements of the Company, including
the related notes thereto, contained in documents incorporated by reference in
the Base Prospectus. See "Incorporation of Certain Documents by Reference."
CONSOLIDATED STATEMENTS OF CONDITION
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
--------------------------------------------------------------
1997 1996 1995 1994 1993
---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Consolidated Average Statements of
Condition
Assets:
Cash and due from banks.............. $ 190,243 $ 187,473 $ 194,224 $ 202,777 $ 194,808
Short-term investments............... 22,369 26,459 17,522 26,425 21,248
Investment securities................ 1,386,299 1,343,007 1,184,002 1,060,015 946,052
Loans................................ 3,921,493 3,602,430 3,390,782 3,114,384 2,949,909
Reserve for loan losses............ (56,747) (50,768) (47,895) (50,258) (48,619)
---------- ---------- ---------- ---------- ----------
Net loans....................... 3,864,746 3,551,662 3,342,887 3,064,126 2,901,290
---------- ---------- ---------- ---------- ----------
Other................................ 216,330 198,762 194,231 168,702 158,414
---------- ---------- ---------- ---------- ----------
Total........................... $5,679,987 $5,307,363 $4,932,866 $4,522,045 $4,221,812
========== ========== ========== ========== ==========
Liabilities and stockholders' equity:
Demand deposits
(noninterest-bearing).............. $ 678,683 $ 633,066 $ 580,928 $ 559,574 $ 500,396
Deposits (interest-bearing).......... 3,191,703 2,890,944 2,583,995 2,704,736 2,718,885
Short-term borrowings................ 1,188,214 1,195,762 1,239,416 775,302 545,012
Other................................ 99,573 101,764 86,703 73,786 65,737
Long-term debt....................... 43,000 30,910 6,981 -- --
---------- ---------- ---------- ---------- ----------
Total........................... 5,201,173 4,852,446 4,498,023 4,113,398 3,830,030
Stockholders' equity................. 478,814 454,917 434,843 408,647 391,782
---------- ---------- ---------- ---------- ----------
Total........................... $5,679,987 $5,307,363 $4,932,866 $4,522,045 $4,221,812
========== ========== ========== ========== ==========
</TABLE>
S-3
<PAGE> 5
<TABLE>
<CAPTION>
AT DECEMBER 31,
--------------------------------------------------------------
1997 1996 1995 1994 1993
---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Consolidated Year-End Statements of
Condition
Assets:
Cash and due from banks.............. $ 239,392 $ 231,233 $ 252,831 $ 203,523 $ 186,328
Short-term investments............... 50,000 134,190 78,866 132,360 189,532
Investment securities................ 1,649,410 1,266,151 1,360,778 985,181 1,093,460
Loans................................ 3,993,935 3,771,484 3,521,915 3,284,233 3,037,572
Reserve for loan losses............ (63,805) (54,361) (49,867) (48,669) (51,363)
---------- ---------- ---------- ---------- ----------
Net loans....................... 3,930,130 3,717,123 3,472,048 3,235,564 2,986,209
---------- ---------- ---------- ---------- ----------
Other................................ 253,419 215,712 207,675 185,731 182,227
---------- ---------- ---------- ---------- ----------
Total........................... $6,122,351 $5,564,409 $5,372,198 $4,742,359 $4,637,756
========== ========== ========== ========== ==========
Liabilities and stockholders' equity:
Demand deposits
(noninterest-bearing).............. $ 792,513 $ 840,987 $ 721,400 $ 695,547 $ 587,058
Deposits (interest-bearing).......... 3,376,517 3,072,711 2,866,185 2,613,203 2,804,388
Short-term borrowings................ 1,307,577 1,036,543 1,195,552 934,807 777,058
Other................................ 99,737 106,451 101,690 80,580 74,077
Long-term debt....................... 43,000 43,000 28,000 -- --
---------- ---------- ---------- ---------- ----------
Total........................... 5,619,344 5,099,692 4,912,827 4,324,137 4,242,581
Stockholders' equity................. 503,007 464,717 459,371 418,222 395,176
---------- ---------- ---------- ---------- ----------
Total........................... $6,122,351 $5,564,409 $5,372,198 $4,742,359 $4,637,756
========== ========== ========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
--------------------------------------------------------
1997 1996 1995 1994 1993
-------- -------- -------- -------- --------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENTS OF INCOME
Net interest income.................. $230,016 $214,221 $197,364 $184,330 $174,847
-------- -------- -------- -------- --------
Trust and asset management fees...... 114,501 98,247 87,982 82,542 78,313
Other noninterest revenues........... 43,014 38,802 37,391 32,696 35,086
Securities gains/(losses)............ 27 1,188 2,267 (2,157) 268
-------- -------- -------- -------- --------
Total noninterest income........ 157,542 138,237 127,640 113,081 113,667
-------- -------- -------- -------- --------
Operating revenues.............. 387,558 352,458 325,004 297,411 288,514
Provision for loan losses............ (21,500) (16,000) (12,280) (4,550) (9,500)
Salaries and employment benefits..... 129,816 119,574 110,670 101,813 95,849
Other operating expenses............. 77,855 72,765 70,334 70,214 65,937
-------- -------- -------- -------- --------
Total other expense............. 207,671 192,339 181,004 172,027 161,786
-------- -------- -------- -------- --------
Income before income taxes........... 158,387 144,119 131,720 120,834 117,228
Applicable income taxes.............. 52,343 46,841 41,689 35,665 34,467
-------- -------- -------- -------- --------
Net income...................... $106,044 $ 97,278 $ 90,031 $ 85,169 $ 82,761
======== ======== ======== ======== ========
Net income per share:
Basic........................... $ 3.15 $ 2.83 $ 2.56 $ 2.37 $ 2.24
-------- -------- -------- -------- --------
Diluted......................... $ 3.08 $ 2.79 $ 2.53 $ 2.35 $ 2.21
-------- -------- -------- -------- --------
</TABLE>
S-4
<PAGE> 6
SELECTED FINANCIAL RATIOS AND STATISTICS
<TABLE>
<CAPTION>
AT OR FOR THE YEAR ENDED DECEMBER 31,
-----------------------------------------------
1997 1996 1995 1994 1993
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Net income as a percentage of:
Average stockholders' equity................... 22.15% 21.38% 20.70% 20.84% 21.12%
Average total assets........................... 1.87 1.83 1.83 1.88 1.96
------- ------- ------- ------- -------
Loan quality:
Percentage of average total loans:
Net charge-offs............................. 0.31% 0.32% 0.33% 0.23% 0.28%
Nonaccruing loans........................... 0.73 1.13 0.99 0.93 0.75
Percentage of total loans:
Reserve for loan losses (1)................. 1.60 1.44 1.42 1.48 1.69
------- ------- ------- ------- -------
Selected per share data:
Dividends paid................................. $ 1.41 $ 1.29 $ 1.17 $ 1.06 $ 0.975
Book value (1)................................. 15.02 13.71 13.09 11.80 10.87
Staff members (full-time equivalents) (1)........ 2,428 2,418 2,332 2,303 2,254
Net income per staff member...................... $43,675 $40,231 $38,607 $36,982 $36,717
Overhead ratio (2)............................... 52.32% 53.04% 53.86% 55.86% 53.97%
Capital generation rate (3)...................... 12.59 11.51 11.68 11.88 12.35
"Tier 1" risk-based capital ratio (1)(4)......... 11.13% 10.76% 10.84% 11.26% 11.07%
Risk-based capital ratio (1)(5).................. 12.38 12.01 12.06 12.51 12.36
Leverage capital ratio (1)(6).................... 8.58 8.59 8.98 8.94 9.05
</TABLE>
- ---------------
(1) At year-end.
(2) Total other expense as a percentage of operating revenue.
(3) Net income less dividends paid as a percentage of prior year-end
stockholders' equity.
(4) "Tier 1" capital to risk-weighted assets.
(5) Total qualifying capital to risk-weighted assets.
(6) "Tier 1" capital to average tangible assets.
S-5
<PAGE> 7
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company as of December 31, 1997 on a historical basis and on a pro forma, as
adjusted basis giving effect to the sale of the Notes. This table should be read
in conjunction with, and is qualified by reference to, the Company's
consolidated financial statements and related notes contained in documents
incorporated by reference in the Base Prospectus.
<TABLE>
<CAPTION>
AT DECEMBER 31, 1997
--------------------------
HISTORICAL PRO FORMA(1)
---------- ------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Long-term debt:
Subordinated Notes........................................ $ -- $125,000
Other Obligations......................................... 43,000 43,000
-------- --------
Total Long-Term Debt.............................. 43,000 168,000
Stockholders' equity........................................ 503,007 503,007
-------- --------
Total Capitalization.............................. $546,007 $671,007
======== ========
</TABLE>
- ---------------
(1) The pro forma, as adjusted information gives effect to the sale of the Notes
as if such event occurred on December 31, 1997.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows the Company's ratio of earnings to fixed charges
for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Excluding interest on deposits.............................. 3.3x 3.1x 2.8x 4.7x 7.8x
Including interest on deposits.............................. 1.8 1.8 1.7 2.0 2.0
</TABLE>
Earnings are comprised of income before income taxes, plus fixed charges.
Fixed charges include interest expense (including the interest factor of
capitalized leases, capitalized interest and amortization of deferred debt
expense) plus the portion of rental payments under operating leases deemed to be
interest.
USE OF PROCEEDS
The Company currently intends to use the net proceeds from the sale of the
Notes for general corporate purposes. These may include, without limitation,
funding a recent acquisition and possible future acquisitions of interests in
investment management firms and other companies and the Company's common stock
buyback program. Pending such uses, the net proceeds may be invested
temporarily. The precise amounts and timing of the application of proceeds will
depend upon the funding requirements of the Company and its affiliates and the
availability of other funds.
DESCRIPTION OF THE NOTES
The following description of the particular terms of the Notes offered
hereby supplements, and to the extent inconsistent therewith replaces, the
description of the general terms and provisions of the Notes set forth in the
Base Prospectus under the captions "Description of Debt Securities" and
"Subordinated Securities," to which reference is hereby made. The Base
Prospectus sets forth the meaning of certain capitalized terms used herein and
not otherwise defined herein.
The Notes will be a series of Subordinated Securities described in the Base
Prospectus, will be limited to $125 million in aggregate principal amount and
will mature on , 2008. Reference should be made to the Base
Prospectus for a detailed summary of additional provisions of the Notes and of
the Subordinated Indenture under which the Notes are issued.
S-6
<PAGE> 8
The Notes will bear interest at the rate of % per annum from
, 1998, payable semiannually in arrears on and
of each year, commencing , 1998, to the persons in whose
names the Notes (or any predecessor Notes) are registered at the close of
business on the preceding or , as the case may be.
Interest will be computed on the basis of a 360-day year consisting of twelve
30-day months.
The Notes may not be redeemed prior to their stated maturity and will not
be subject to any sinking fund.
The Notes are to be issued under the Indenture relating to subordinated
debt securities dated as of , 1998 (the "Subordinated Indenture")
between the Company and , as trustee (the "Trustee").
SUBORDINATION
The Notes will be unsecured and will be subordinated and junior in right of
payment to the Company's obligations to the holders of Senior Indebtedness and
General Obligations of the Company, as described under the caption "Subordinated
Securities" in the Base Prospectus. At December 31, 1997, the Company had
$596,000 of General Obligations (including $447,000 of deferred directors' fees)
and no Senior Indebtedness outstanding. The Subordinated Indenture does not
prohibit or limit the incurrence of Senior Indebtedness or General Obligations
by the Company, including Senior Indebtedness or General Obligations held by
Affiliates.
LIMITED RIGHT OF ACCELERATION
Payment of principal of the Notes may be accelerated only in the case of
the bankruptcy, insolvency or reorganization of the Company. There is no right
of acceleration in the case of a default in the payment of principal, premium,
if any, or interest on the Notes or in the performance of any other covenant of
the Company in the Subordinated Indenture or in the Notes. See "Subordinated
Securities--Limited Right of Acceleration" in the Base Prospectus.
DELIVERY AND FORM
The Notes initially will be represented by global securities ("Global
Securities") deposited with DTC and registered in the name of the nominee of
DTC. The Notes will be available for purchase in denominations of $1,000 and
integral multiples thereof, in book-entry form only. Unless and until
certificated Notes are issued under the limited circumstances described below,
no beneficial owner of a Note will be entitled to receive a definitive
certificate representing a Note. So long as DTC or any successor depositary
(collectively, the "Depositary") or its nominee is the registered holder of the
Global Securities, the Depositary, or such nominee, as the case may be, will be
considered to be the sole owner or holder of the Notes for all purposes of the
Subordinated Indenture.
BOOK-ENTRY SYSTEM
DTC has advised the Company that it is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code, and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participating organizations (the "Participants") and
facilitate the clearance and settlement of securities transactions between
Participants through electronic book-entry changes in accounts of its
Participants, thereby eliminating the need for physical movement of
certificates. Participants include securities brokers and dealers, banks, trust
companies and clearing corporations and may include certain other organizations
(including the Underwriters (as defined below)). Indirect access to the DTC
system also is available to banks, brokers, dealers, trust companies and other
entities that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly (the "Indirect Participants").
Beneficial owners of the Notes that are not Participants or Indirect
Participants but desire to purchase, sell or otherwise transfer ownership of or
other interests in the Notes may do so only through Participants and Indirect
Participants.
S-7
<PAGE> 9
Payments with respect to the Global Securities will be made to DTC or any
successor Depositary, or the nominee thereof. The Company expects that any such
Depositary or nominee, upon receipt of any payment of principal of or interest
on the Global Securities, will credit the accounts of its Participants with
payments in amounts proportionate to such Participants' ownership interest in
the Global Securities and that direct or indirect beneficial owners of the Notes
will receive distributions of principal and interest in proportion to their
respective beneficial ownership through the Participants. Consequently, any
payments to beneficial owners of the Notes will be subject to the terms,
conditions and time of payment required by the Depositary, the Participants and
Indirect Participants, as applicable. The Company expects that such payments
will be governed by standing instructions and customary practices, as is now the
case with securities held for the accounts of customers registered in "street
name." Once payment is made to the Depositary or its nominee, further payments
will be the responsibility of the Depositary or nominee and the Depositary's
Participants and Indirect Participants. NEITHER THE COMPANY NOR THE TRUSTEE WILL
HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ASPECT OF THE RECORDS RELATING TO
OR PAYMENTS MADE ON ACCOUNT OF BENEFICIAL OWNERSHIP INTERESTS IN THE NOTES OR
FOR MAINTAINING, SUPERVISING OR REVIEWING ANY RECORDS RELATING TO SUCH
BENEFICIAL OWNERSHIP INTERESTS.
Under the rules, regulations and procedures creating and affecting DTC and
its operations, DTC is required to make book-entry transfers among Participants
on whose behalf it acts with respect to the Notes and is required to receive and
transmit distributions of principal and interest on the Notes. Participants and
Indirect Participants with which beneficial owners of the Notes have accounts
similarly are required to make book-entry transfers and receive and transmit
such payments on behalf of their respective beneficial owners of the Notes.
Accordingly, although beneficial owners of the Notes will not possess
certificated Notes, beneficial owners will be entitled to receive payments and
to transfer their interests.
Since it is anticipated that the only holder of the Notes will be the
Depositary or its nominee, beneficial owners of the Notes will not be recognized
as holders of the Notes under the Subordinated Indenture unless certificated
definitive Notes are issued. So long as the Notes are represented by the Global
Securities, beneficial owners of the Notes will only be permitted to exercise
the rights of holders of Notes indirectly through the Participants, who in turn
will exercise such rights through the Depositary.
If the Depositary is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days, the Company will issue individual Notes in definitive
form in exchange for the Global Securities representing the Notes. In addition,
the Company may at any time and in its sole discretion determine not to have the
Notes represented by Global Securities. In that event, the Company will issue
individual Notes in definitive form in exchange for the Global Securities
representing the Notes. In either instance, the Company will issue Notes in
definitive form equal in aggregate principal amount to the Global Securities, in
such names and in such principal amounts as the Depositary requests. Notes so
issued in definitive form will be issued in denominations of $1,000 and integral
multiples thereof, and be in registered form only, without coupons.
REGARDING THE TRUSTEE
The Company has agreed to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of its duties under the Indenture, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties thereunder. In
addition to its trusteeship under the Subordinated Indenture, the Company
maintains other business relationships with the Trustee.
S-8
<PAGE> 10
UNDERWRITING
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated , 1998 (the "Underwriting Agreement"), the
Underwriters named below (the "Underwriters") have severally but not jointly
agreed to purchase from the Company the following respective principal amounts
of the Notes:
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
UNDERWRITER OF NOTES
----------- ----------------
<S> <C>
Salomon Brothers Inc........................................ $
Keefe, Bruyette and Woods, Inc..............................
------------
Total............................................. $125,000,000
============
</TABLE>
The Underwriting Agreement provides that the obligations of the
Underwriters to pay for and accept delivery of the Notes are subject to certain
conditions precedent, that the Underwriting Agreement may be terminated under
certain circumstances and that the Underwriters will be obligated to purchase
all of the Notes if any are purchased.
The Company has been advised by the Underwriters that the Underwriters
propose initially to offer the Notes to the public at the public offering price
set forth on the cover page of this Prospectus Supplement and to certain dealers
at such price, less a concession not in excess of % of the principal amount
of the Notes. The Underwriters may allow, and such dealers may reallow, a
concession not in excess of % of the principal amount of the Notes. After
the initial public offering, the public offering notice and such concessions may
be changed.
The Underwriting Agreement provides that the Company will indemnify the
several Underwriters against certain civil liabilities, including liabilities
under the Securities Act, or contribute to payments which the Underwriters may
be required to make in respect thereof.
The Notes are a new issue of securities with no established trading market.
The Company does not intend to apply for listing of the Notes on a national
securities exchange, but has been advised by the Underwriters that they
presently intend to make a market in the Notes, as permitted by applicable laws
and regulations. The Underwriters are not obligated, however, to make a market
in the Notes, and any such market-making may be discontinued at any time at the
sole discretion of the Underwriters. Accordingly, no assurance can be given as
to the liquidity of, or the trading market for, the Notes.
The Underwriters and certain of their affiliates and associates may be
customers of, have borrowing relationships with, engage in transactions with,
and/or perform services, including investment banking services, for the Company
and its subsidiaries in the ordinary course of business.
In connection with the offering, the Underwriters may engage in stabilizing
transactions, syndicate covering transactions and penalty bids in accordance
with Rule 104 under the Exchange Act. Stabilizing transactions permit bids to
purchase the Notes so long as the stabilizing bids do not exceed a specified
maximum. Syndicate covering transactions involve purchases of the Notes in the
open market after the distribution has been completed in order to cover
syndicate short positions. Penalty bids permit the Underwriters to reclaim a
selling concession from a syndicate member when the Notes originally sold by
such
S-9
<PAGE> 11
syndicate member are purchased in a syndicate covering transaction to cover
syndicate short positions. Such stabilizing transactions, syndicate covering
transactions and penalty bids may cause the price of the Notes to be higher than
it would otherwise be in the absence of such transactions. These transactions,
if commenced, may be discontinued at any time.
No NASD member participating in offers and sales of securities may execute
a transaction in the Notes in a discretionary account without the prior written
approval of the member's customer.
S-10
<PAGE> 12
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION DATED , 1998
PROSPECTUS [LOGO]
WILMINGTON TRUST CORPORATION
UNSECURED SENIOR AND SUBORDINATED SECURITIES
WILMINGTON TRUST CORPORATION (the "Company") may issue from time to time,
together or separately, in one or more series, up to $225,000,000 principal
amount of unsecured debt securities ("Securities"), which may be either senior
("Senior Securities") or subordinated ("Subordinated Securities") in priority of
payment. If the Company issues any Original Issue Discount Securities (as
defined below), the maximum amount of Securities issued hereunder will be based
on the proceeds of sale rather than the principal amount.
------------------------
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. The Subordinated Securities will be
unsecured and subordinated as described under the caption "Subordinated
Securities."
Unless otherwise specified in the Prospectus Supplement relating to a
series of Subordinated Securities, payment of the principal of Subordinated
Securities may be accelerated only upon certain events involving the bankruptcy
or insolvency of the Company and no right of acceleration will exist upon
default in the payment of principal or interest or in the performance of any
covenant.
When a particular series of Securities is offered hereunder, a supplement
to this Prospectus (a "Prospectus Supplement") setting forth certain terms of
the offered Securities will be delivered, together with this Prospectus. The
Prospectus Supplement will include, among other things, to the extent
applicable, the specific designation, priority, aggregate principal amount, rate
or method of calculation and time of payment of any interest, authorized
denominations, maturity, offering price, place or places of payment, redemption
terms, terms of any repayment at the option of the holder, terms for sinking
fund payments, provisions regarding original issue discount securities and other
terms.
The Prospectus Supplement may also contain information, if applicable,
about certain U.S. Federal income tax considerations relating to, and any
listing on a securities exchange of, the Securities covered by the Prospectus
Supplement.
The Securities may be sold by the Company directly, through agents
designated from time to time, through underwriting syndicates led by one or more
managing underwriters or through one or more underwriters acting alone. If any
agent of the Company or any underwriter is involved in the sale of Securities,
the name of such agent or underwriter, the principal or stated amount to be
purchased by it, any applicable commissions or discounts and the net proceeds to
the Company from such sale will be set forth in, or may be calculated from, the
Prospectus Supplement. The aggregate net proceeds to the Company from the sale
of all of the Securities will be the public offering or purchase price of the
Securities sold less the aggregate of such commissions and discounts and other
expenses of issuance and distribution. See "Plan of Distribution."
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL
AGENCY.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE> 13
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFERING MADE
HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANOTHER PERSON. THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the Public
Reference Room of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, and the Commission's Regional Offices at 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and Seven World Trade Center (13th Floor), New
York, New York 10048. Copies of such material may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. In addition, registration statements and certain
other filings made with the Commission through its Electronic Data Gathering,
Analysis and Retrieval ("EDGAR") System are publicly available through the
Commission's site on the World Wide Web located at http://www.sec.gov. The
Registration Statement, including all exhibits thereto and amendments thereof,
have been filed with the Commission through EDGAR.
The Company has filed with the Commission a Registration Statement under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Securities being offered by this Prospectus. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
portions of which have been omitted in accordance with the rules and regulations
of the Commission. For other information with respect to the Company and the
Securities, reference is made to the Registration Statement, including the
exhibits thereto. The Registration Statement may be inspected by anyone without
charge at the principal office of the Commission in Washington, D.C., and copies
of all or any part of it may be obtained from the Commission upon payment of the
prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1997 (the "1997 Form 10-K"), previously filed by the Company with the Commission
pursuant to Section 13 of the Exchange Act, is incorporated herein by reference.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities will be deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein will be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS MAY OBTAIN WITHOUT CHARGE,
UPON WRITTEN OR ORAL REQUEST, A COPY OF ANY OF THE DOCUMENTS INCORPORATED BY
REFERENCE HEREIN, EXCEPT FOR THE EXHIBITS TO SUCH DOCUMENTS (UNLESS SUCH
EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS).
REQUESTS SHOULD BE ADDRESSED TO THOMAS P. COLLINS AT WILMINGTON TRUST
CORPORATION, RODNEY SQUARE NORTH, 1100 NORTH MARKET STREET, WILMINGTON, DELAWARE
19890 OR AT (302) 651-1693.
2
<PAGE> 14
WILMINGTON TRUST CORPORATION
GENERAL
The Company is the holding company of Wilmington Trust Company ("WTC"), a
Delaware-chartered bank and trust company, and is also the holding company of a
Pennsylvania-chartered bank and trust company and a Federal savings bank with
banking offices in Maryland and Florida (together with WTC, the "Banks"). WTC is
the largest full-service bank headquartered in Delaware and one of the nation's
largest personal trust companies. At December 31, 1997, WTC had over $100
billion in assets under management or custody on behalf of customers in all 50
states, the District of Columbia and 17 foreign countries. Subsidiaries of WTC
engage in the distribution of mutual funds sponsored by WTC, investment
advising, the sale of securities and insurance and related activities.
The Company is a legal entity separate and distinct from the Banks and
WTC's nonbanking subsidiaries (collectively, the "Affiliates"). Accordingly, the
right of the Company, and thus the right of the Company's creditors and
stockholders, to participate in any distribution of the assets or earnings of
any Affiliate is necessarily subject to the prior claims of creditors of the
Affiliate, except to the extent that claims of the Company in its capacity as a
creditor may be recognized. The principal sources of the Company's revenues
historically have been dividends from the Affiliates. See
"Business -- Regulation -- Dividend Limitations" in the 1997 Form 10-K for a
discussion of restrictions on the payment of dividends by the Banks and the
Company.
The Company was incorporated under Delaware law in 1985. Its executive
offices are located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890 and its telephone number is (302) 651-1000.
REGULATORY MATTERS
The following summary of laws and regulations applicable to the Company and
the Banks does not purport to be complete, and is qualified in its entirety by
reference to the more extensive discussion set forth in the 1997 Form 10-K and
to applicable laws and regulations.
General
The Company is a bank holding company and a thrift holding company and the
Banks are depository institutions whose deposits are insured by the Federal
Deposit Insurance Corporation (the "FDIC"). Federal statutes applicable to the
Company and the Banks include, without limitation, the Federal Reserve Act, the
Federal Deposit Insurance Act and the Bank Holding Company Act (the "BHCA"). The
Company and the Banks are regulated and supervised at the Federal level by the
Federal Reserve Board, the FDIC and the Office of Thrift Supervision (the
"OTS"). In addition, the Company, WTC and the Company's Pennsylvania-chartered
banking subsidiary are subject to supervision and regulation by state
authorities.
BHCA
Under the BHCA and the Federal Reserve Board regulations thereunder, the
Federal Reserve Board's approval is required before a holding company may
acquire "control" of a bank. The BHCA defines "control" of a bank to include
ownership or the power to vote 25% or more of any class of voting stock of a
bank, the ability to otherwise control the election of a majority of a bank's
directors or the power to exercise, directly or indirectly, a controlling
influence over a bank's management or policies. In addition, the Federal Reserve
Board's prior approval is required for: (1) any action which causes a bank or
other company to become a bank holding company; (2) any action which causes a
bank to become a subsidiary of a bank holding company; (3) the acquisition by a
bank holding company of direct or indirect ownership or control of any voting
securities of a bank or bank holding company if the acquisition results in the
acquiring bank holding company's control of more than five percent of the
outstanding shares of any class of voting securities of the target bank or bank
holding company; (4) the acquisition by a bank holding company or one of its
subsidiaries, other than a bank, of all or substantially all of a bank's assets;
and (5) the merger or consolidation of bank holding companies, including a
merger through a purchase of assets and assumption of liabilities. Before
obtaining "control" of the Company, a potential acquirer would need to obtain
the Federal Reserve Board's prior approval under the BHCA or the Federal Reserve
Board's regulations promulgated under the Federal Bank Control Act.
3
<PAGE> 15
A bank holding company and its subsidiaries generally may not, with certain
exceptions, engage in, acquire or control, directly or indirectly, voting
securities or assets of a company engaged in any activity other than (1) banking
or managing or controlling banks and other subsidiaries authorized under the
BHCA and (2) any BHCA activity which the Federal Reserve Board determines to be
so closely related to banking or managing or controlling banks as to be a proper
incident thereto. These include any incidental activities which are necessary to
carry on such activities, provided the bank holding company has obtained the
Federal Reserve Board's prior approval for the activity. The Federal Reserve
Board has approved a lengthy list of activities that are permissible for bank
holding companies and their non-banking subsidiaries. See the 1997 Form 10-K.
Interstate Banking Act
Under the Riegle-Neal Interstate Banking and Branching Efficiency Act of
1994 (the "Interstate Banking Act"), adequately capitalized and managed bank
holding companies are permitted, subject to regulatory approval and certain
limitations and regardless of certain state law restrictions such as reciprocity
requirements and regional compacts, to acquire a bank in any state. States
cannot "opt out" of these interstate acquisition provisions.
In addition, under the Interstate Banking Act, bank holding companies are
permitted, subject to regulatory approval and certain limitations, to merge
banks operating in different states, provided neither bank is headquartered in a
state that "opted out" of these provisions before June 1, 1997.
Under the Interstate Banking Act, states may, by express legislation,
permit de novo branching of or acquisitions of existing branches by out-of-state
banks within their borders. In 1995, Delaware opted in to the provisions of the
Interstate Banking Act permitting banks operating in different states to be
merged, but opted out of de novo branching.
The Interstate Banking Act generally provides that the laws of the host
state generally apply with respect to interstate branching, community
reinvestment, consumer protection or fair lending.
Safety and Soundness Limitations
As a bank holding company, the Company is required to conduct its
operations in a safe and sound manner. If the Federal Reserve Board believes
that an activity of a bank holding company or control of a nonbank subsidiary,
other than a nonbank subsidiary of a bank, constitutes a serious risk to the
financial safety, soundness or stability of a subsidiary bank of the bank
holding company and is inconsistent with sound banking practices or the purposes
of the BHCA or certain other Federal banking statutes, the Federal Reserve Board
may require the bank holding company to terminate the activity or the holding
company's control of the subsidiary.
Sections 23A and 23B of the Federal Reserve Act establish standards for the
terms of, limit the amount of and establish collateral requirements with respect
to, any loans or extensions of credit to and investments in affiliates by the
Banks. The Banks are "affiliates" of the Company and each other for purposes of
the Federal Reserve Act. In addition, the Federal Reserve Act and the Federal
Reserve Board's regulations limit the amounts of, and establish required
procedures and credit standards with respect to, loans and other extensions of
credit to directors, officers and principal shareholders of the Corporation and
its subsidiaries, as well as to related interests of those persons.
Capital Standards
The Federal Reserve Board and the other federal banking agencies have
adopted "risk-based" capital standards to assist in assessing the capital
adequacy of bank holding companies and banks under their jurisdiction. Those
risk-based capital standards include both a definition of capital and a
framework for calculating "risk-weighted" assets by assigning assets and
off-balance-sheet items to broad, risk-weighted categories. An institution's
risk-based capital ratio is calculated by dividing its qualifying capital by its
risk-weighted assets. At least one-half of risk-based capital must consist of
Tier 1 capital (generally including common stockholders' equity, qualifying
cumulative and noncumulative perpetual preferred stock and minority interests in
consolidated subsidiaries). The Federal Reserve Board also adopted minimum
leverage ratios of "Tier 1" capital to total assets. At December 31, 1997, the
Company and the Banks were all well-capitalized, with capital levels in excess
of applicable risk-based and leverage thresholds. See the 1997 Form 10-K.
4
<PAGE> 16
FDIC Insurance and Regulation
Deposits in the Banks are insured by the FDIC up to applicable limits. The
Company's banking subsidiaries currently are not required to pay for FDIC
insurance; the annual premium for the Company's thrift subsidiary is currently
$.23 per $100 of insured deposits.
The FDIC may impose sanctions on any insured depository institution which
does not operate in accordance with the FDIC's regulations, policies or
directives. Cease-and-desist proceedings may be instituted against an insured
institution or holding company which is believed to be engaged in unsafe and
unsound practices, including violations of laws and regulations. The FDIC also
has the authority to terminate deposit insurance coverage, after notice and
hearing, if it determines that the insured institution is or has engaged in an
unsafe or unsound practice which has not been corrected, is in an unsafe or
unsound condition to continue operation or has violated any law, regulation,
rule or order of, or condition imposed by, the FDIC. The Company is not aware of
any past or current practice, condition or violation which might lead to
termination of the deposit insurance coverage of any of the Banks or to any
proceeding against any of the Banks or any of their respective directors,
officers or staff members.
The Federal Deposit Insurance Corporation Improvement Act of 1991 (the
"Improvement Act"), among other things, requires annual on-site examinations of
insured depository institutions, and authorizes the Federal examining agency to
take prompt corrective action to resolve an institution's problems. The nature
and extent of the corrective action depends primarily on the institution's
capital level. Options available in appropriate circumstances include requiring
recapitalization of or a capital restoration plan from the institution,
restricting transactions between the institution and its affiliates, restricting
interest rates, asset growth, activities and investments in the institution's
subsidiaries, ordering a new election of directors, dismissing directors or
senior executive officers and requiring the employment of qualified senior
executive officers. The holding company of a depository institution may be
required to guarantee compliance with an institution's capital restoration plan
and provide assurance of performance under such a plan. The Improvement Act
also: (1) prohibits insured depository institutions from making capital
distributions (including dividends) if, after the distribution, the institution
would be undercapitalized; (2) directs the Federal banking agencies to monitor
closely the condition, plans, restrictions and requirements of or applicable to
undercapitalized institutions and restricts such institutions' asset growth,
branching and new lines of business; and (3) expands the grounds for appointment
of a conservator or receiver for an insured institution. The Improvement Act
generally requires that a receiver be appointed if the institution does not have
tangible equity of at least 2% of its total assets.
Other Laws and Regulations
The lending and deposit-taking activities of the Banks are subject to a
variety of Federal and state consumer protection laws, including the Equal
Credit Opportunity Act (which prohibits discrimination in all aspects of credit-
granting), the Truth-in-Lending Act (which principally mandates certain
disclosures in connection with loans made for personal, family or household
purposes and imposes substantive restrictions with respect to home equity lines
of credit), the Truth-in-Savings Act (which principally mandates certain
disclosures in connection with deposit-taking activities), the Fair Credit
Reporting Act (which, among other things, requires a lender to disclose the name
and address of the credit bureau from whom a lender obtains a report that
resulted in a denial of credit), the Real Estate Settlement Procedures Act
(which, among other things, requires residential mortgage lenders to provide
loan applicants with closing cost information shortly after the time of
application and prohibits referral fees in connection with real estate
settlement services), the Electronic Funds Transfer Act (which, among other
things, requires certain disclosures in connection with electronic funds
transactions) and the Expedited Funds Availability Act (which, among other
things, requires that deposited funds be made available for withdrawal in
accordance with a prescribed schedule and that that schedule be disclosed to
customers).
Under the Community Reinvestment Act (the "CRA") and the Fair Housing Act,
depository institutions are prohibited from certain discriminatory practices
which limit or withhold services to individuals residing in economically
depressed areas. In addition, the CRA imposes certain affirmative obligations to
provide lending and other financial services to such individuals. CRA
performance is considered by all of the Federal regulatory agencies in
connection with reviewing applications to relocate an office, mergers and
acquisitions of financial institutions and establishing new branch or deposit
facilities.
5
<PAGE> 17
Federal legislation has permanently pre-empted all state usury laws on
residential first mortgage loans made by insured depository institutions in any
state which did not override that preemption. Although some states overrode the
preemption, Delaware, Florida, Maryland and Pennsylvania did not. Accordingly,
there is currently no limit on the interest rate which the Banks can charge on
those loans. In addition, the usury limitations of the Banks' respective home
states apply to all other loans the Banks offer nationwide. In today's interest
rate environment, those usury laws do not materially affect the Banks' lending
programs.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows the Company's ratio of earnings to fixed charges
for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Excluding interest on deposits............................ 3.3x 3.1x 2.8x 4.7x 7.8x
Including interest on deposits............................ 1.8 1.8 1.7 2.0 2.0
</TABLE>
As used in the above chart, earnings are comprised of income before income
taxes, plus fixed charges. Fixed charges include interest expense (including the
interest factor of capitalized leases, capitalized interest and amortization of
deferred debt expense) plus the portion of rental payments under operating
leases deemed to be interest.
USE OF PROCEEDS
The Company currently intends to use the net proceeds from the sale of any
Securities for general corporate purposes. These may include, without
limitation, funding a recent acquisition and possible future acquisitions of
interests in investment management firms and other companies and the Company's
common stock buyback program and such other purposes as may be stated in any
Prospectus Supplement. Pending such uses, the net proceeds may be invested
temporarily. The precise amounts and timing of the application of proceeds will
depend upon the funding requirements of the Company and the Affiliates and the
availability of other funds. Except as described in any Prospectus Supplement,
specific allocations of the proceeds to such purposes will not be made at the
date of such Prospectus Supplement. Based upon the historical and anticipated
future growth of the Company and the financial needs of the Affiliates, the
Company may engage in additional financings of a character and amount to be
determined as the need arises.
DESCRIPTION OF SECURITIES
GENERAL
The Securities will constitute either Senior Securities or Subordinated
Securities. The Senior Securities will be issued under an Indenture (the "Senior
Indenture") between the Company and the trustee under such Indenture. The
Subordinated Securities will be issued under an Indenture (the "Subordinated
Indenture") between the Company and the trustee under such Indenture. The
trustees under the Senior Indenture and the Subordinated Indenture are referred
to herein, as applicable, as "Trustee." The Senior Indenture and the
Subordinated Indenture are collectively referred to herein as the "Indentures."
The statements under this caption are brief summaries of certain provisions
contained in the Indentures, do not purport to be complete and are qualified in
their entirety by reference to the applicable Indenture, a copy of which is an
exhibit to the Registration Statement. Whenever defined terms are used but not
defined herein, such terms have the meanings ascribed to them in the applicable
Indenture, which meanings are incorporated herein by reference.
The following description of the terms of the Securities sets forth certain
general terms and provisions of the Securities to which any Prospectus
Supplement may relate. The particular terms of any Securities and the extent, if
any, to which such general provisions may apply to such Securities will be
described in the Prospectus Supplement relating to such Securities.
6
<PAGE> 18
Neither of the Indentures limits the aggregate principal amount of
Securities which may be issued thereunder, and each Indenture provides that
Securities of any series may be issued thereunder up to the aggregate principal
amount which the Company may authorize from time to time. Neither the Indentures
nor the Securities will limit or otherwise restrict the amount of other
indebtedness which may be incurred or the other securities which may be issued
by the Company or any of its subsidiaries.
Because the Company is a holding company, its rights and the rights of its
creditors, including the holders of the Securities offered hereby, to
participate in the assets of any Affiliate upon the latter's liquidation or
reorganization, will be subject to the prior claims of the Affiliate's creditors
except to the extent that the Company may itself be a creditor with recognized
claims against the Affiliate.
Reference is made to the applicable Prospectus Supplement for any series of
Securities for a description of the following terms: (1) the title of such
Securities; (2) the limit, if any, on the aggregate principal amount or
aggregate initial public offering price of such Securities; (3) the priority of
payment of such Securities; (4) the price or prices (which may be expressed as a
percentage of the aggregate principal amount thereof) at which the Securities
will be issued; (5) the date or dates on which the principal of the Securities
will be payable; (6) the rate or rates (which may be fixed or variable) per
annum at which such Securities will bear interest, if any, or the method of
determining the same; (7) the date or dates from which such interest, if any, on
the Securities will accrue, the date or dates on which such interest, if any,
will be payable ("Interest Payment Dates"), the date or dates on which payment
of such interest, if any, will commence and the regular record dates for such
Interest Payment Dates ("Regular Record Dates"); (8) the extent to which any of
the Securities will be issuable in temporary or permanent global form, or the
manner in which any interest payable on a temporary or permanent global Debt
Security will be paid; (9) each office or agency where the Securities may be
presented for registration of transfer or exchange; (10) the place or places
where the principal of, premium, if any, and interest, on the Securities will be
payable; (11) the date or dates, if any, after which such Securities may be
redeemed or purchased in whole or in part, at the option of the Company,
mandatorily redeemed pursuant to any sinking, purchase or analogous fund, or
purchased or redeemed at the option of the holder, and the redemption or
repayment price or prices thereof; (12) the denomination or denominations in
which such Securities are authorized to be issued; (13) whether any of the
Securities will be issued as Original Issue Discount Securities; (14)
information with respect to book-entry procedures, if any; (15) any additional
covenants or events of default not currently set forth in the applicable
Indenture; and (16) any other terms of such Securities not inconsistent with the
provisions of the applicable Indenture.
Securities may be issued as original issue discount Securities (bearing no
interest or interest at a rate which at the time of issuance is below market
rates) ("Original Issue Discount Securities"), to be sold at a substantial
discount below the stated principal amount thereof due at the stated maturity of
such Securities. There may not be any periodic payments of interest on Original
Issue Discount Securities as defined herein. If the maturity of any Original
Issue Discount Security is accelerated, the amount payable to the holder of such
Original Issue Discount Security upon such acceleration will be determined in
accordance with the Prospectus Supplement, the terms of such Security and the
Indenture, but will be an amount less than the amount payable at the maturity of
the principal of such Original Issue Discount Security. Federal income tax
considerations with respect to Original Issue Discount Securities will be set
forth in the Prospectus Supplement relating thereto.
REGISTRATION AND TRANSFER
Securities will be issued only as registered securities, without coupons.
Securities (other than a Global Security) may be presented for transfer (with
the form of transfer endorsed thereon duly executed) or exchanged for other
Securities of the same series at the office of the Security Registrar specified
according to the terms of the applicable Indenture. Such transfer or exchange
will be made without service charge but the Company may require payment of any
taxes or other governmental charges.
GLOBAL SECURITIES
The Securities of a series may be issued in whole or in part in the form of
one or more Global Securities that will be deposited with, or on behalf of, a
depositary (the "Depositary") identified in the Prospectus Supplement relating
to such series. A Global Security may not be transferred except as a whole by
the Depositary for such
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<PAGE> 19
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any nominee to a successor Depositary or any nominee of such
successor.
The specific terms of the depositary arrangement with respect to a series
of Securities will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary. Such accounts will be designated by the
underwriters or agents with respect to such Securities. Ownership of beneficial
interests in a Global Security will be limited to persons that have accounts
with the applicable Depositary ("Participants") or persons that may hold
interests through Participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the applicable Depositary or its nominee
with respect to interests of Participants and the records of Participants (with
respect to interests of persons other than Participants).
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes under the Indenture
governing such Securities. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have any of the
individual Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Securities of such series in definitive form and will not
be considered the owners or holders thereof under the Indenture governing such
Securities.
Payments of principal of, premium, if any, and interest, if any, on
individual Securities represented by a Global Security registered in the name of
a Depositary or its nominee will be made to the Depositary or its nominee, as
the case may be, as the registered owner of the Global Security representing
such Securities. Neither the Company, the Trustee for such Securities, any
Paying Agent, nor the Security Registrar for such Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the Global
Security for such Securities or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Securities or its
nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Security representing any of such Securities will
credit Participants' accounts immediately with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such Global
Security for such Securities as shown on the records of such Depositary or its
nominee. The Company also expects that payments by Participants to owners of
beneficial interests in such Global Security held through such Participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name." Such payments will be the responsibility of such Participants.
If the Depositary for a series of Securities is at any time unwilling,
unable or ineligible to continue in such capacity and a successor Depositary is
not appointed by the Company within 90 days, the Company will issue individual
Securities of such series in definitive certificated form in exchange for the
Global Security representing such series of Securities. In addition, the Company
may at any time and in its sole discretion, subject to any limitations described
in the Prospectus Supplement relating to such Securities, determine not to have
any Securities of a series represented by one or more Global Securities. In that
event, the Company will issue individual Securities of such series in definitive
certificated form in exchange for the Global Security or Securities representing
such series of Securities. Further, if the Company so specifies with respect to
the Securities of a series, an owner of a beneficial interest in a Global
Security representing Securities of such series may, on terms acceptable to the
Company, the Trustee and the Depositary for such Global Security, receive
Securities of such series in definitive form in exchange for such beneficial
interests, subject to any limitations described in the Prospectus Supplement
relating to such Securities. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to physical delivery in
definitive form of Securities of the series represented by such Global Security
equal
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<PAGE> 20
in principal amount to such beneficial interest and to have such Securities
registered in its name (if the Securities of such series are issuable as
Registered Securities). Securities of such series so issued in definitive form
will be issued as registered Securities in denominations, unless otherwise
specified by the Company, of $1,000 and integral multiples thereof.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and any interest on Securities will be made at
the office(s) of the Company and/or such Paying Agent or Paying Agents as the
Company may designate from time to time. However, at the Company's option,
payment of any interest may be made (1) by check mailed to the address of the
person entitled thereto as such address appears in the applicable Security
Register or (2) by wire transfer to an account maintained by the person entitled
thereto as specified in the applicable Security Register. Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any installment of
interest on Securities will be made to the person in whose name such Debt
Security is registered at the close of business on the Regular Record Date for
such payment.
CONSOLIDATION, MERGER OR SALE OF ASSETS
Each Indenture provides that the Company may, without the consent of the
holders of any of the Securities outstanding under the applicable Indenture,
consolidate with, merge into or transfer its assets substantially as an entirety
to any person or entity, provided that (1) any such successor assumes the
Company's obligations on the applicable Securities and under the applicable
Indenture, (2) after giving effect thereto (and after the lapse of time or
notice, or both), no Event of Default (as defined in the Senior Indenture) in
the case of the Senior Securities, or Default (as defined in the Subordinated
Indenture) in the case of the Subordinated Securities, shall have happened and
be continuing and (3) certain other conditions under the applicable Indenture
are met. Accordingly, any such consolidation, merger or transfer of assets
substantially as an entirety which meets the conditions described above would
not create any Event of Default or Default which would entitle holders of the
Securities, or the Trustee on their behalf, to take any of the actions described
below under the caption "Senior Securities -- Events of Default, Waivers, etc."
or "Subordinated Securities -- Events of Default, Waivers, etc."
LEVERAGED AND OTHER TRANSACTIONS
The Indentures and the Securities do not contain provisions which would
afford holders of the Securities protection in the event of a highly leveraged
or other transaction involving the Company which could adversely affect the
holders of Securities.
MODIFICATION OF THE INDENTURE; WAIVER OF COVENANTS
Each Indenture provides that, with the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding Securities of
each affected series, modifications and alterations of such Indenture may be
made which affect the rights of the holders of such Securities; provided,
however, that no such modification or alteration may be made without the consent
of the holder of each Security so affected which would (1) change the maturity
of the principal of, or of any installment of interest or premium on any
Security issued pursuant to such Indenture, reduce the principal amount thereof
or any premium thereon, change the method of calculation of interest or the
currency of payment of principal or interest (or premium, if any) on, reduce the
minimum rate of interest thereon, impair the right to institute suit for the
enforcement of any such payment on or with respect to any such Security or
reduce the amount of principal of an Original Issue Discount Security that would
be due and payable upon an acceleration of the maturity thereof; or (2) reduce
the above-stated percentage in principal amount of outstanding Securities
required to modify or alter such Indenture.
SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of the Company
and will rank pari passu with all outstanding unsecured senior indebtedness of
the Company.
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EVENTS OF DEFAULT, WAIVERS, ETC.
An Event of Default with respect to Senior Securities of any series is
defined in the Senior Indenture as (1) default in the payment when due of
principal of or premium, if any, on any outstanding Senior Securities of that
series; (2) default in the payment when due of interest on any outstanding
Senior Securities of that series and continuance of such default for 30 days;
(3) default in the performance of any other covenant of the Company in the
Senior Indenture with respect to outstanding Senior Securities of such series
and continuance of such default for 90 days after written notice; (4) certain
events of bankruptcy, insolvency or reorganization of the Company and (5) any
other event that may be specified in a Prospectus Supplement with respect to any
series of Senior Securities.
If an Event of Default with respect to any series of outstanding Senior
Securities occurs and is continuing, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the outstanding Senior Securities
of such series may declare the principal amount (or if such Senior Securities
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all Senior Securities of that
series to be due and payable immediately. If an Event of Default occurs and is
continuing, the Trustee may, in its discretion, and at the written request of
holders of not less than a majority in aggregate principal amount of the Senior
Securities of any series and upon reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request and
subject to certain other conditions set forth in the Senior Indenture will,
proceed to protect the rights of the holders of all Senior Securities of such
series. The holders of a majority in aggregate principal amount of the Senior
Securities of any series may waive an Event of Default resulting in acceleration
of such Senior Securities, but only if all Events of Default with respect to
Senior Securities of such series have been remedied and all payments due (other
than those due as a result of acceleration) have been made.
The Senior Indenture also provides that, notwithstanding any other
provision of the Senior Indenture, the holder of any Senior Security of any
series will have the right to institute suit for the enforcement of any payment
of principal of, premium, if any, and interest on such Senior Securities when
due and that such right will not be impaired without the consent of such holder.
The Company is required to file with the Trustee annually a written
statement of officers as to the existence or non-existence of defaults under the
Senior Indenture or the Senior Securities.
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Company and, unless otherwise specified in the Prospectus Supplement relating to
a particular series of Subordinated Securities offered thereby, will be subject
to the subordination provisions described below.
SUBORDINATION
It is the intent of the Company that Subordinated Securities issued by the
Company will be treated as capital in calculating regulatory capital ratios. The
Federal Reserve Board has issued interpretations of its capital regulations
generally providing, among other things, that subordinated debt of bank holding
companies is includable in capital in calculating regulatory capital ratios only
if the subordination of the debt meets certain criteria and if the debt may be
accelerated only for bankruptcy, insolvency and similar matters (the
"Subordination Interpretations"). The Subordinated Indenture contains
subordination and acceleration provisions for the Subordinated Securities which
are intended to be consistent with the Subordination Interpretations.
If any distribution of assets of the Company upon any dissolution, winding
up, liquidation or reorganization (a "Liquidating Distribution") occurs, the
holders of any Senior Indebtedness (as defined below) will first be entitled to
receive payment in full of all amounts due or to become due before the holders
of the Subordinated Securities will be entitled to receive any payment in
respect of the principal of, premium, if any, or interest on the Subordinated
Securities. If upon any such payment or distribution of assets there remain,
after giving effect to such subordination provisions in favor of the holders of
Senior Indebtedness, any amounts of cash, property or securities available for
payment or distribution in respect of Subordinated Securities ("Excess
Proceeds") and if, at such time, any
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<PAGE> 22
creditors in respect of General Obligations (as defined below) have not received
payment in full of all amounts due or to become due on or in respect of such
General Obligations, then such Excess Proceeds shall first be applied to pay or
provide for the payment in full of such General Obligations before any payment
or distribution may be made in respect of the Subordinated Securities.
In addition, no payment may be made of the principal of, premium, if any,
or interest on the Subordinated Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Subordinated Securities,
at any time when (1) there is a default in the payment of the principal of,
premium, if any, interest on or otherwise in respect of any Senior Indebtedness
or (2) any event of default with respect to any Senior Indebtedness has occurred
and is continuing, or would occur as a result of such payment on the
Subordinated Securities or any redemption, retirement, purchase or other
acquisition of any of the Subordinated Securities, permitting the holders of
such Senior Indebtedness to accelerate the maturity thereof. Except as described
above, the obligation of the Company to make payment of the principal of,
premium, if any, or interest on the Subordinated Securities will not be
affected.
Subject to payment in full of all Senior Indebtedness, the holders of
Subordinated Securities will be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness. Subject to payment
in full of all General Obligations, the holders of Subordinated Securities will
be subrogated to the rights of the creditors in respect of General Obligations
to receive payments or distributions of cash, property or securities of the
Company applicable to such creditors in respect of General Obligations.
Senior Indebtedness is defined in the Subordinated Indenture as the
principal of, premium, if any, and interest on (1) all of the Company's
indebtedness for money borrowed, other than the Subordinated Securities, whether
outstanding on the date of execution of the Subordinated Indenture or created,
assumed or incurred thereafter, except such indebtedness as by its terms is
expressly stated to be not superior in right of payment to the subordinated
securities issued under the Subordinated Indenture; or to rank pari passu with
the Subordinated Securities and (2) any deferrals, renewals or extensions of any
such Senior Indebtedness. The term "indebtedness for money borrowed" as used in
the preceding sentence includes, without limitation, any obligation of, or any
obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets. There is no limitation on the issuance of Senior
Indebtedness of the Company.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Subordinated Securities offered thereby, "General
Obligations" means all obligations of the Company to make payment on account of
claims in respect of derivative products such as interest and foreign exchange
rate contracts, commodity contracts and similar arrangements, other than (1)
obligations on account of Senior Indebtedness, (2) obligations on account of
indebtedness for money borrowed ranking pari passu with or subordinate to the
Subordinated Securities and (3) obligations which by their terms are expressly
stated not to be superior in right of payment to the Subordinated Securities or
to rank pari passu with the Subordinated Securities; provided, however, that,
notwithstanding the foregoing, if any rule, guideline or interpretation
promulgated or issued by the Federal Reserve Board (or other competent
regulatory agency or authority), as from time to time in effect, establishes or
specifies criteria for the inclusion in regulatory capital of subordinated debt
of a bank holding company requiring that such subordinated debt be subordinated
to obligations to creditors in addition to those set forth above, then the term
"General Obligations" also will include such additional obligations to creditors
in effect from time to time pursuant to such rules, guidelines or
interpretations. Under current Federal Reserve Board interpretations,
subordinated debt qualifying as regulatory capital must be subordinated in right
of payment to the claims of the issuer's general creditors. For purposes of the
definition of "General Obligations," the term "claim" will have the meaning
assigned thereto in Section 101(5) of the Bankruptcy Code of 1978, as amended to
the date of the Subordinated Indenture.
LIMITED RIGHT OF ACCELERATION
Unless otherwise specified in the Prospectus Supplement relating to any
series of Subordinated Securities, payment of principal of the Subordinated
Securities may be accelerated only in case of the bankruptcy, insolvency or
reorganization of the Company. There is no right of acceleration in the case of
a default in the payment of
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<PAGE> 23
principal of, premium, if any, or interest on the Subordinated Securities or the
performance of any other covenant of the Company in the Subordinated Indenture.
EVENTS OF DEFAULT, DEFAULTS, WAIVERS, ETC.
An Event of Default with respect to Subordinated Securities of any series
is defined in the Subordinated Indenture as certain events involving the
bankruptcy, insolvency or reorganization of the Company and any other Event of
Default provided with respect to Subordinated Securities of that series. A
Default with respect to Subordinated Securities of any series is defined in the
Subordinated Indenture as (1) an Event of Default with respect to such series,
(2) default in the payment when due of the principal of or premium, if any, on
any Subordinated Security of such series, (3) default in the payment when due of
interest upon any Subordinated Security of such series and the continuance of
such default for 30 days, (4) default in the performance of any other covenant
or agreement of the Company in the Subordinated Indenture with respect to
Subordinated Securities of such series and continuance of such default for 90
days after written notice or (5) any other Default provided with respect to
Subordinated Securities of that series. If an Event of Default with respect to
any series of outstanding Subordinated Securities occurs and is continuing,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Subordinated Securities of such series may declare the principal
amount (or, if such Subordinated Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all Subordinated Securities of that series to be due
and payable immediately. If a Default occurs and is continuing, the Trustee may,
in its discretion, and, at the written request of holders of not less than a
majority in aggregate principal amount of the Subordinated Securities of any
series outstanding under the Subordinated Indenture and upon reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request and subject to certain other conditions set forth
in the Subordinated Indenture, will proceed to protect the rights of the holders
of all the Subordinated Securities of such series. The holders of a majority in
aggregate principal amount of the Subordinated Securities of any series
outstanding under the Subordinated Indenture may waive an Event of Default
resulting in acceleration of such Subordinated Securities, but only if all
Defaults have been remedied and all payments due (other than those due as a
result of acceleration) have been made.
The Subordinated Indenture also provides that, notwithstanding any other
provision of the Subordinated Indenture, the holder of any Subordinated Security
of any series shall have the right to institute suit to enforce any payment of
principal of, premium, if any, or interest on such Subordinated Security on the
respective Stated Maturities (as defined in the Subordinated Indenture)
expressed in such Subordinated Security, and that such right shall not be
impaired without the consent of such holder.
The Company is required to file with the Trustee annually a written
statement of officers as to the existence or non-existence of defaults under the
Subordinated Indenture or the Subordinated Securities.
PLAN OF DISTRIBUTION
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from time
to time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Securities offered
thereby.
The Company may sell Securities directly, through agents designated from
time to time, through underwriting syndicates led by one or more managing
underwriters or through one or more underwriters acting alone. Each Prospectus
Supplement will set forth the terms of the Securities to which such Prospectus
Supplement relates, including the name or names of any underwriters or agents
with whom the Company has entered into arrangements with respect to the sale of
such Securities, the public offering or purchase price of such Securities and
the net proceeds to the Company from such sale, any underwriting discounts and
other items constituting underwriters' compensation, any discounts and
commissions allowed or paid to dealers, if any, any commissions allowed or paid
to agents, and the securities exchange or exchanges, if any, on which such
Securities will be listed. Dealer trading may take place in certain of the
Securities, including Securities not listed on any securities exchange.
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<PAGE> 24
Securities may be purchased to be reoffered to the public through
underwriting syndicates led by one or more managing underwriters, or through one
or more underwriters acting alone. The underwriter or underwriters with respect
to each underwritten offering of Securities will be named in the Prospectus
Supplement relating to such offering and, if an underwriting syndicate is used,
the managing underwriter or underwriters will be set forth on the cover page of
such Prospectus Supplement. Unless otherwise set forth in the applicable
Prospectus Supplement, the obligations of the underwriters to purchase the
Securities will be subject to certain conditions precedent, and each of the
underwriters with respect to a sale of Securities will be obligated to purchase
all of its Securities if any are purchased. Any initial public offering price
and any discounts or concession allowed or reallowed or paid to dealers may be
changed from time to time.
Securities may be offered and sold by the Company through agents designated
by the Company from time to time. Any agent involved in the offer and sale of
any Securities will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement relating to such offering.
Unless otherwise indicated in such Prospectus Supplement, any such agent will be
acting on a reasonable efforts basis for the period of its appointment.
Offers to purchase Securities may be solicited directly by the Company and
sales thereof may be made by the Company directly to institutional investors or
others who may be deemed to be underwriters within the meaning of the Securities
Act with respect to any resale thereof. The terms of any such sales will be
described in the Prospectus Supplement relating thereto. The Company may also
issue contracts under which the other party may be required to purchase
Securities. Such contracts would be issued with Securities in amounts, at prices
and on terms to be set forth in a Prospectus Supplement.
The anticipated place and time of delivery of Securities will be set forth
in the applicable Prospectus Supplement.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or agents to solicit offers by certain institutions to
purchase Securities from the Company pursuant to delayed delivery contracts
providing for payment and delivery at a future date. Institutions with which
such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Company. Unless otherwise set forth in the applicable Prospectus Supplement,
the obligations of any purchaser under any such contract will not be subject to
any conditions except that (1) the purchase of the Securities will not at the
time of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject, and (2) if the Securities are also being sold to
underwriters acting as principals for their own account, the underwriters shall
have purchased such Securities not sold for delayed delivery. The underwriters
and such other persons will not have any responsibility in respect of the
validity or performance of such contracts.
Any underwriter or agent participating in the distribution of the
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Securities so offered and sold and any discounts or
commissions received by it from the Company and any profit realized by it on the
sale or resale of the Securities may be deemed to be underwriting discounts and
commissions under the Securities Act.
Underwriters and agents may be entitled, under agreements entered into with
the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such underwriters or agents may be required to
make in respect thereof. Certain of any such underwriters and agents, including
their associates, may be customers of, engage in transactions with or perform
services for, the Company or one or more of its subsidiaries in the ordinary
course of business.
LEGAL OPINIONS
Certain legal matters relating to the Securities offered hereby will be
passed upon for the Company by Ballard Spahr Andrews & Ingersoll, LLP, 1735
Market Street, Philadelphia, Pennsylvania 19103, and for any underwriters,
selling agents and certain other purchasers by Cravath, Swaine & Moore,
Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019.
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EXPERTS
The consolidated financial statements of the Company incorporated by
reference in the Company's Annual Report (Form 10-K) for the year ended December
31, 1997, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon incorporated by reference therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
Any financial statements and schedules hereafter incorporated by reference
in the registration statement of which this prospectus is a part that have been
audited and are the subject of a report by independent accountants will be so
incorporated by reference in reliance upon such reports and upon the authority
of such firms as experts in accounting and auditing to the extent covered by
consents filed with the Commission.
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======================================================
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS, IN CONNECTION WITH THE OFFER CONTAINED
IN THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS
SUPPLEMENT AND THE BASE PROSPECTUS NOR ANY SALE MADE HEREUNDER AND THEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THE INFORMATION
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS
PROSPECTUS SUPPLEMENT AND THE BASE PROSPECTUS ARE NOT AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITY IN ANY JURISDICTION IN WHICH IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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TABLE OF CONTENTS
<TABLE>
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<S> <C>
PROSPECTUS SUPPLEMENT
Wilmington Trust Corporation.......... S-2
Selected Historical Financial
Information......................... S-3
Ratio of Earnings to Fixed Charges.... S-6
Use of Proceeds....................... S-6
Description of the Notes.............. S-6
Underwriting.......................... S-9
PROSPECTUS
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
Wilmington Trust Corporation.......... 3
Ratio of Earnings to Fixed Charges.... 6
Use of Proceeds....................... 6
Description of Securities............. 6
Senior Securities..................... 9
Subordinated Securities............... 10
Plan of Distribution.................. 12
Legal Opinions........................ 13
Experts............................... 14
</TABLE>
======================================================
======================================================
$125,000,000
WILMINGTON TRUST CORPORATION
% SUBORDINATED NOTES
DUE 2008
[LOGO]
------------
PROSPECTUS SUPPLEMENT
, 1998
------------
SALOMON SMITH BARNEY
KEEFE, BRUYETTE AND WOODS, INC.
======================================================
<PAGE> 27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the amount of expenses expected to be
incurred in connection with the issuance of the Unsecured Debt Securities
offered pursuant to this Registration Statement, all of which shall be borne by
the Company. All of the expenses listed below, except the Securities and
Exchange Commission Registration Fee, represent estimates only.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 66,375.00
Printing Expenses........................................... 30,000.00
Accounting Fees and Expenses................................ 50,000.00
Legal and Blue Sky Fees and Expenses........................ 110,000.00
Trustee Fees and Expenses................................... 5,000.00
Miscellaneous Fees and Expenses............................. 26,225.00
-----------
Total.................................................. $287,600.00
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate of Incorporation of the Company provides that a
director of the Company will not be liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except to the
extent such exemption from liability or limitation thereof is not permitted
under the General Corporation Law of the State of Delaware as amended from time
to time. The Bylaws of the Company further provide that the Company will
indemnify and hold harmless, to the fullest extent permitted by applicable law
from time to time, any person who was or is made or is threatened to be made a
party or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of the
fact that he or she, or a person for whom he or she is the legal representative,
is or was a director or officer of the Company, or is or was serving at the
written request of the Company as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust, enterprise or
nonprofit entity, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses reasonably incurred by such
person. The Company shall be required to indemnify a person in connection with a
proceeding (or a part thereof) initiated by such person only if such proceeding
(or a part thereof) was authorized by the Board of Directors.
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation may indemnify its officers, directors, employees and
agents (or persons who have served, at the corporation's request, as officers,
directors, employees or agents of another corporation) against expenses,
including attorneys' fees, actually and reasonably incurred by them in
connection with the defense of any action by reason of being or having been
directors, officers, employees or agents, if such persons have acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceedings, had no reason to believe his or her conduct was unlawful.
II-1
<PAGE> 28
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture relating to Unsecured Senior Debt
Securities.
4.2 Form of Indenture relating to Unsecured Subordinated Debt
Securities.
4.3 Form of Unsecured Senior Debt Security (included in Exhibit
4.1).
4.4 Form of Unsecured Subordinated Debt Security (included in
Exhibit 4.2).
4.5 Form of Officers' Certificate.
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP.
12.1 Statement of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young, LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included
in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
25.1 Form T-1, Statement of Eligibility and Qualification of
Norwest Bank Minnesota, N.A. relating to Unsecured
Subordinated Debt Securities.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which any offers or sales are being
made, a post-effective amendment to the registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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.
(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 offering therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 29
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer of controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrant has filed a statement of eligibility for the
Subordinated Securities. The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee for
the Senior Securities to act under subsection (1) of section 310 of the Trust
Indenture Act ("Act") in accordance with the rules and regulations prescribed by
the Commission under section 305(b)(2) of the Act.
II-3
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wilmington, Delaware on March 19, 1998.
WILMINGTON TRUST CORPORATION
By: /s/ TED T. CECALA
------------------------------------
Ted T. Cecala
Chairman and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas P. Collins and Gerard A.
Chamberlain and each or either one of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effect
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to perform each and every act
and thing requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or his, her or their substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ TED T. CECALA Chairman, Chief Executive Officer March 19, 1998
- --------------------------------------------------- and Director (Principal Executive
Ted T. Cecala Officer)
/s/ DAVID R. GIBSON Senior Vice President and Chief March 19, 1998
- --------------------------------------------------- Financial Officer (Principal
David R. Gibson Financial Officer)
/s/ ROBERT V.A. HARRA, JR. President, Chief Operating March 19, 1998
- --------------------------------------------------- Officer, Treasurer and Director
Robert V.A. Harra, Jr.
/s/ ROBERT H. BOLLING, JR. Director March 19, 1998
- ---------------------------------------------------
Robert H. Bolling, Jr.
/s/ CAROLYN S. BURGER Director March 19, 1998
- ---------------------------------------------------
Carolyn S. Burger
/s/ RICHARD R. COLLINS Director March 19, 1998
- ---------------------------------------------------
Richard R. Collins
/s/ CHARLES S. CROMPTON, JR. Director March 19, 1998
- ---------------------------------------------------
Charles S. Crompton, Jr.
</TABLE>
II-4
<PAGE> 31
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ H. STEWART DUNN, JR. Director March 19, 1998
- ---------------------------------------------------
H. Stewart Dunn, Jr.
/s/ EDWARD B. DUPONT Director March 19, 1998
- ---------------------------------------------------
Edward B. duPont
/s/ R. KEITH ELLIOTT Director March 19, 1998
- ---------------------------------------------------
R. Keith Elliott
Director March 19, 1998
- ---------------------------------------------------
Robert C. Forney
/s/ ANDREW B. KIRKPATRICK, JR. Director March 19, 1998
- ---------------------------------------------------
Andrew B. Kirkpatrick, Jr.
/s/ REX L. MEARS Director March 19, 1998
- ---------------------------------------------------
Rex L. Mears
/s/ HUGH E. MILLER Director March 19, 1998
- ---------------------------------------------------
Hugh E. Miller
/s/ STACEY J. MOBLEY Director March 19, 1998
- ---------------------------------------------------
Stacey J. Mobley
/s/ LEONARD W. QUILL Director March 19, 1998
- ---------------------------------------------------
Leonard W. Quill
/s/ DAVID P. ROSELLE Director March 19, 1998
- ---------------------------------------------------
David P. Roselle
/s/ H. RODNEY SHARP, III Director March 19, 1998
- ---------------------------------------------------
H. Rodney Sharp, III
/s/ THOMAS P. SWEENEY Director March 19, 1998
- ---------------------------------------------------
Thomas P. Sweeney
/s/ BERNARD J. TAYLOR, II Director March 19, 1998
- ---------------------------------------------------
Bernard J. Taylor, II
/s/ MARY JORNLIN-THEISEN Director March 19, 1998
- ---------------------------------------------------
Mary Jornlin-Theisen
/s/ ROBERT W. TUNNELL, JR. Director March 19, 1998
- ---------------------------------------------------
Robert W. Tunnell, Jr.
</TABLE>
II-5
<PAGE> 1
EXHIBIT 1.1
Wilmington Trust Corporation
Underwriting Agreement
New York, New York
, 1998
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Wilmington Trust Corporation, a Delaware corporation (the "Company"),
proposes to sell to the several underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of its securities identified in Schedule
I hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of _______, 1998, between the Company and _______, as trustee (the
"Trustee"). To the extent there are no additional Underwriters listed on
Schedule II other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 17 hereof.
<PAGE> 2
2
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for the use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related basic prospectus,
for the registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission
one of the following: (1) after the Effective Date of such registration
statement, a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the Effective Date
of such registration statement, an amendment to such registration
statement, (including the form of final prospectus supplement) or (3) a
final prospectus in accordance with Rules 415 and 424(b). In the case
of clause (1), the Company has included in such registration statement,
as amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified by Regulation
S-K Item 512(a), the Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement
did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date the Indenture did or will
comply in all material respects with the requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to
<PAGE> 3
3
Rule 424(b), will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
herein or in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
<PAGE> 4
4
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (1)
when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with
<PAGE> 5
5
the Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities, and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
(f) Until the Business Day set forth on Schedule I hereto, the
Company will not, without the prior written consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose
of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company
(other than the Securities).
(g) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result,
<PAGE> 6
6
under the Exchange Act or otherwise, in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Securities.
(h) Each Subsidiary of the Company that is a national banking
association holds a valid Certificate of Authority from the Comptroller
of the Currency of the United States of America (the "Comptroller") to
do business as a national banking association under the laws of the
United States and is not in arrears with respect to reports required to
be filed with the Comptroller; and each other bank Subsidiary of the
Company has been duly organized and is validly existing as a bank in
good standing under the laws of its jurisdiction of organization and is
not in arrears with respect to reports required to be filed with
applicable state and Federal bank regulators.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) Ballard Spahr Andrews & Ingersoll, counsel for the
Company, shall have furnished to the Representatives their opinion,
dated the Closing Date and addressed to the Representatives to the
effect that:
(i) each of the Company and Wilmington Trust Company
(the "Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which it is
<PAGE> 7
7
chartered or organized, with full corporate power and
authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification and the
Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
(ii) all the outstanding shares of capital stock of
the Subsidiary have been duly and validly authorized and
issued and are nonassessable, and, except as otherwise set
forth in the Final Prospectus, all outstanding shares of
capital stock of the Subsidiary are owned by the Company
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the knowledge
of such counsel, after due inquiry, any other security
interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization
is as set forth in the Final Prospectus; the Securities
conform in all material respects to the description thereof
contained in the Final Prospectus;
(iv) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect); and the Securities have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(v) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
its or their property, of a character required to be disclosed
in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be
described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit thereto, which is not described
or filed as required; and the statements included or
incorporated by reference in the Final Prospectus describing
any legal proceedings or material contracts or
<PAGE> 8
8
agreements relating to the Company and the statements in the
Final Prospectus under the headings listed on Schedule I
hereto fairly summarize the matters therein described;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial or statistical information contained therein,
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder; and such counsel has no
reason to believe that on the Effective Date or at the
Execution Time the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus
as of its date and on the Closing Date included or includes
any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus,
will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization, filing with
or order of any court or governmental agency or body is
required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and
such other approvals (specified in such opinion) as have been
obtained;
<PAGE> 9
9
(x) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant
to, (i) the charter or by-laws of the Company or its
subsidiaries, (ii) the terms of the material agreements of the
Company or the Subsidiary known to such counsel, or (iii) any
statute, law, rule, regulation, judgment, order or decree
applicable to the Company or its subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the
Company or the Subsidiary or any of its or their properties;
and
(xi) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to
the Final Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Representatives shall have received from Cravath,
Swaine & Moore, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration
<PAGE> 10
10
Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements (other than capsule information), audited or
unaudited, included or incorporated by reference in the
Registration Statement and the Final Prospectus (exclusive of
any supplement thereto), there has been no material effect on
the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) At the Execution Time and the Closing Date, the Company
shall have caused Ernst & Young LLP to have furnished to the
Representatives, at the Execution Time and at the Closing Date, letters
(which may refer to letters previously delivered to one or more of the
Representatives), dated respectively as of the Execution Time and as of
the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and that they
have performed a review of the unaudited interim financial information
of the Company for the periods listed on Schedule I hereto in
accordance with Statement on Auditing Standards No. 71, and stating in
effect, except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated by
reference in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
<PAGE> 11
11
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards
No. 71, of the unaudited interim financial information for the
periods listed on Schedule I hereto, as indicated in their
report incorporated by reference in the Registration Statement
and the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and the executive,
audit and trust committees of the Company and the
Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to the date of the most recent audited
financial statements included or incorporated by reference in
the Registration Statement and Final Prospectus, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus do
not comply as to form in all material respects with
applicable accounting requirements of the Act and
with the published rules and regulations of the
Commission with respect to financial statements
included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity
with generally accepted accounting principles applied
on a basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Registration Statement and the
Final Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated by reference in
the Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
than five days prior to the date of the letter, in
the long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company
as compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
by reference in the Registration Statement and the
Final Prospectus, or for the period from the date of
the most recent
<PAGE> 12
12
financial statements (other than capsule
information), audited or unaudited, included or
incorporated by reference in the Registration
Statement and the Final Prospectus to such specified
date there were any decreases, as compared with the
corresponding period in the preceding year in net
revenues or income before income taxes or in total or
per share amounts of net income or net interest
income of the Company and its subsidiaries, except in
all instances for changes or decreases set forth in
such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives;
(3) the information included or incorporated
by reference in the Registration Statement and Final
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions in the Final Prospectus specified on
Schedule I hereto, the information included or incorporated by
reference in Items 1, 2, 6, 7 and 11 of the Company's Annual
Report on Form 10-K, incorporated by reference in the
Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in
the Registration Statement and the Final Prospectus and to any
information appearing in a Current Report on Form 8-K
incorporated by reference in the Registration Statement and
the Final Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
<PAGE> 13
13
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at 825 Eighth Avenue, New York, NY 10019, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the
<PAGE> 14
14
Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through
Salomon Smith Barney on demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein; provided further, that with respect to any
untrue statement or omission of material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the securities concerned, to the
extent that any such loss, claim, damage or liability of such Underwriter occurs
under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such person,
(y) the untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
<PAGE> 15
15
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities, the legend in block capital letters on pages S-2 related to
stabilization, syndicate covering transactions and penalty bids and, under the
heading "Underwriting" or "Plan of Distribution", (i) the sentences related to
concessions and reallowances and (ii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to
it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall
not have employed
<PAGE> 16
16
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. It is understood, however,
that the Company shall, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons, which
firm shall be designated in writing by Salomon Smith Barney and shall be
reasonably satisfactory to the Company. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other hand from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among Underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the
one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement
<PAGE> 17
17
or omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the
<PAGE> 18
18
Nasdaq National Market shall have been suspended or limited or minimum prices
shall have been established on either of such Exchange or National Market, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Section 7 and 8 hereof shall survive the termination or cancelation of this
Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Salomon Smith Barney General Counsel (fax
no.: (212) ) and confirmed to the General Counsel, Salomon Smith Barney,
at [ ], New York, New York , Attention: General Counsel; or, if
sent to the Company, will be mailed, delivered or telefaxed to
[FACSIMILE NUMBER] and confirmed to it at , attention of the Legal
Department.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
<PAGE> 19
19
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including, any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the
<PAGE> 20
20
Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration statement.
"Salomon Smith Barney" shall mean Smith Barney Inc. or Salomon
Brothers Inc, to the extent that either such party is signatory to this
Agreement.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended and the rules and regulations of the Commission
promulgated thereunder.
<PAGE> 21
21
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
Wilmington Trust Corporation
By: ...............................
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Salomon Brothers Inc
[NAME OF COMANAGER, IF ANY]
By: Salomon Brothers Inc
By:
...............................
Name:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to
the foregoing Agreement.
<PAGE> 22
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: , 199 at 10:00 a.m. at Cravath, Swaine &
Moore, 825 Eighth Avenue, New York, NY 10019
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of items to be covered by the letter from Ernst & Young LLP
delivered pursuant to Section 6(e) at the Execution Time:
Interim financial statements to be covered by the letter from Ernst & Young LLP
delivered pursuant to Section 6(e) at the Execution Time:
<PAGE> 23
2
Specific items in the Final Prospectus and Registration Statement to be covered
by the letter from Ballard Spahr Andrews & Ingersoll delivered pursuant to
Section 6(b) on the Closing Date:
<PAGE> 24
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
Salomon Brothers Inc .................... $
----------------
Total ......................... $
================
<PAGE> 1
Exhibit 4.1
================================================================================
WILMINGTON TRUST CORPORATION
AND
[ ]
TRUSTEE
--------------------
INDENTURE
Dated as of __________, 1998
--------------------
SENIOR DEBT SECURITIES
================================================================================
<PAGE> 2
TABLE OF CONTENTS
PAGE
----
RECITALS OF THE COMPANY.............................................. 1
ARTICLE ONE
Definitions and Other
Provisions of General Application
SECTION 1.01. Definitions........................................... 1
SECTION 1.02. Compliance Certificates and Opinions.................. 8
SECTION 1.03. Form of Documents Delivered to Trustee................ 9
SECTION 1.04. Acts of Holders....................................... 9
SECTION 1.05. Notices, etc., to Trustee and Company................. 12
SECTION 1.06. Notices to Holders; Waiver............................ 12
SECTION 1.07. Language of Notices, etc.............................. 13
SECTION 1.08. Conflict with Trust Indenture Act..................... 13
SECTION 1.09. Effect of Headings and Table of
Contents........................................... 13
SECTION 1.10. Successors and Assigns................................ 13
SECTION 1.11. Separability Clause................................... 13
SECTION 1.12. Benefits of Indenture................................. 13
SECTION 1.13. Legal Holidays........................................ 13
SECTION 1.14. Governing Law......................................... 14
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally....................................... 14
SECTION 2.02. Form of Securities.................................... 14
SECTION 2.03. Form of Trustee's Certificate of
Authentication..................................... 15
SECTION 2.04. Global Securities..................................... 15
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms....................................... 15
SECTION 3.02. Denominations......................................... 18
SECTION 3.03. Execution, Authentication, Delivery and
Dating............................................. 18
SECTION 3.04. Temporary Securities.................................. 21
SECTION 3.05. Registration, Registration of Transfer
and Exchange....................................... 21
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities......................................... 25
SECTION 3.07. Payment of Interest; Interest Rights
Preserved.......................................... 25
SECTION 3.08. Persons Deemed Owners................................. 27
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<PAGE> 3
SECTION 3.09. Cancellation.......................................... 27
SECTION 3.10. Computation of Interest............................... 28
SECTION 3.11. [RESERVED]............................................ 28
SECTION 3.12. [RESERVED]............................................ 28
SECTION 3.13. CUSIP Numbers......................................... 28
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article.............................. 28
SECTION 4.02. Election To Redeem; Notice To Trustee................. 28
SECTION 4.03. Selection by Security Registrar of
Securities To Be Redeemed.......................... 29
SECTION 4.04. Notice of Redemption.................................. 29
SECTION 4.05. Deposit of Redemption Price........................... 30
SECTION 4.06. Securities Payable on Redemption Date................. 30
SECTION 4.07. Securities Redeemed in Part........................... 31
SECTION 4.08. Redemption Suspended During Event of
Default............................................ 31
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and
Interest........................................... 31
SECTION 5.02. Maintenance of Office or Agency....................... 31
SECTION 5.03. Money for Security Payments To Be Held
in Trust........................................... 32
SECTION 5.04. [RESERVED]............................................ 34
SECTION 5.05. Statement as to Compliance............................ 34
SECTION 5.06. Maintenance of Corporate Existence,
Rights and Franchises.............................. 34
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
SECTION 6.01. Company To Furnish Trustee Names and
Addresses of Holders............................... 35
SECTION 6.02. Preservation of Information;
Communications to Holders.......................... 35
SECTION 6.03. Reports by Trustee.................................... 37
SECTION 6.04. Reports by Company.................................... 37
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default..................................... 38
SECTION 7.02. Acceleration of Maturity; Rescission and
Annulment.......................................... 39
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee............................. 40
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<PAGE> 4
SECTION 7.04. Trustee May File Proofs of Claim...................... 41
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities........................... 42
SECTION 7.06. Application of Money Collected........................ 42
SECTION 7.07. Limitation on Suits................................... 43
SECTION 7.08. Unconditional Right of Holders To
Receive Principal, Premium and Interest............ 44
SECTION 7.09. Restoration of Rights and Remedies.................... 44
SECTION 7.10. Rights and Remedies Cumulative........................ 44
SECTION 7.11. Delay or Omission Not Waiver.......................... 44
SECTION 7.12. Control by Holders.................................... 45
SECTION 7.13. Waiver of Past Defaults............................... 45
SECTION 7.14. Undertaking for Costs................................. 45
SECTION 7.15. Waiver of Stay or Extension Laws...................... 46
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities................... 46
SECTION 8.02. Notice of Default..................................... 48
SECTION 8.03. Certain Rights of Trustee............................. 48
SECTION 8.04. Not Responsible for Recitals or Issuance
of Securities...................................... 49
SECTION 8.05. May Hold Securities................................... 50
SECTION 8.06. Money Held in Trust................................... 50
SECTION 8.07. Compensation and Reimbursement........................ 50
SECTION 8.08. Disqualification; Conflicting
Interests.......................................... 51
SECTION 8.09. Corporate Trustee Required; Eligibility............... 51
SECTION 8.10. Resignation and Removal; Appointment of
Successor.......................................... 52
SECTION 8.11. Acceptance of Appointment by Successor................ 53
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee.................. 55
SECTION 8.13. Preferential Collection of Claims
Against Company.................................... 55
SECTION 8.14. Appointment of Authenticating Agents.................. 55
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent
of Holders......................................... 57
SECTION 9.02. Supplemental Indentures With Consent of
Holders............................................ 59
SECTION 9.03. Execution of Supplemental Indentures.................. 60
SECTION 9.04. Effect of Supplemental Indentures..................... 60
SECTION 9.05. Conformity with Trust Indenture Act................... 60
SECTION 9.06. Reference in Securities to Supplemental
Indentures......................................... 60
iii
<PAGE> 5
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on
Certain Terms................................ 61
SECTION 10.02. Successor Corporation Substituted.................... 61
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of
Indenture.......................................... 62
SECTION 11.02. Application of Trust Money........................... 63
SECTION 11.03. Reinstatement........................................ 63
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability.................. 63
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article............................. 64
SECTION 13.02. Satisfaction of Sinking Fund Payments
with Securities.................................... 64
SECTION 13.03. Redemption of Securities for Sinking
Fund............................................... 65
ARTICLE FOURTEEN
Repayment at the Option of Holders
SECTION 14.01. Applicability of Article............................. 65
SECTION 14.02. Repayment of Securities.............................. 65
SECTION 14.03. Exercise of Option, Notice........................... 66
SECTION 14.04. Election of Repayment by Remarketing
Entities........................................... 66
SECTION 14.05. Securities Payable on the Repayment
Date............................................... 66
ARTICLE FIFTEEN
Meetings of Holders of Securities
SECTION 15.01. Purposes for Which Meetings May Be
Called............................................. 67
SECTION 15.02. Call, Notice and Place of Meetings................... 67
SECTION 15.03. Persons Entitled to Vote at Meetings................. 67
SECTION 15.04. Quorum; Action....................................... 68
SECTION 15.05. Determination of Voting Rights; Conduct
iv
<PAGE> 6
and Adjournment of Meetings........................ 69
SECTION 15.06. Counting Votes and Recording Action of
Meetings........................................... 70
ARTICLE SIXTEEN
Miscellaneous
SECTION 16.01. Counterparts......................................... 70
EXHIBIT A: Form of Senior Note
v
<PAGE> 7
THIS INDENTURE is entered into as of _____________, 1998,
between WILMINGTON TRUST CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (hereinafter called
the "Company"), having its principal executive office at Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890
and ________, a ________ banking corporation (hereinafter called the
"Trustee"), having its principal corporate trust office at ________.
RECITALS OF THE COMPANY
The Company deems it necessary or advisable from time to time to
issue its unsecured debentures, notes, bonds and other evidences of indebtedness
to be issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other
Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 3.01;
<PAGE> 8
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as may be otherwise expressly provided herein or in
one or more indentures supplemental hereto, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at
the date of such computation.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in the English language,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of such
place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same
2
<PAGE> 9
or in different newspapers in the same city meeting the foregoing requirements
and, in each case, on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President,
any Vice Chairman of the Board, any Vice President, the Treasurer, the
Secretary, the Controller, any Assistant Controller, any Assistant Treasurer or
any Assistant Secretary of the Company.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on
which banking institutions in the City of Wilmington, Delaware and any Place of
Payment for the Securities are open for business.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by an Authorized Officer, and
delivered to the Trustee.
"corporation" includes corporations, associations, companies and
business trusts.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to
3
<PAGE> 10
Section 3.01 until a successor Depositary shall have been appointed pursuant to
Section 3.05, and thereafter "Depositary" shall mean or include each Person who
is then a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Securities of that series.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Global Security" means a Security issued to evidence all or a part
of a series of Securities in accordance with Section 3.03.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"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", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security (or any installment of principal)
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate, signed by the Chairman
of the Board, the President, a Vice Chairman of the Board or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. Each such certificate shall contain the statements set
forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be
4
<PAGE> 11
reasonably acceptable to the Trustee. Each such opinion shall contain the
statements set forth in Section 1.02, if applicable.
"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 7.02.
"Outstanding", when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that, in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities 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 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with
5
<PAGE> 12
respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee,
at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
instrument is at the address set forth in the first paragraph of this
instrument.
"Principal Paying Agent" means the Paying Agent, if any, designated
as such by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in such Security at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security on
any Interest Payment Date means the date, if any, specified in such Security as
the "Regular Record Date".
6
<PAGE> 13
"Remarketing Entity", when used with respect to the Securities of
any series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be
repaid upon exercise of an option for repayment by the Holder, means the date
fixed for such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be
repaid upon exercise of an option for repayment by the Holder, means the price
at which it is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer of the Trustee to whom such matter is referred because
of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; provided,
however, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities," with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest
means the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or
such installment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation, at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by
7
<PAGE> 14
one or more Subsidiaries of the Company, or by the Company and one or more
Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock
having ordinary voting power for the election of directors irrespective of
whether or not stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed, and, to the extent required by law, as
amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except as otherwise
expressly provided in this Indenture) shall include:
8
<PAGE> 15
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand,
authorization, direction, notice, consent, waiver or
9
<PAGE> 16
other action provided by this Indenture to be given or taken by Holders or
Holders of any series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing or may be embodied in and evidenced in a
record of any meeting. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or record or
both are delivered to the Trustee, and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 8.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 15.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Securities shall be proved by the Security
Register.
(iv) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(v) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction,
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notice, consent, waiver or take any other Act, or to vote or consent to any
action by vote or consent authorized or permitted to be given or taken by
Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such Series made by any Person
in respect of any such action, or in the case of any such vote, prior to such
vote, such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Securities furnished to the Trustee pursuant to Section 6.01 prior to such
solicitation.
(vi) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(vii) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that is the
Holder of a Global Security, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given or
taken by Holders, and a Depositary that is the Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of interests in any such
Global Security through such Depositary's standing instructions and customary
practices.
(viii) The Company may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any Global
Security held by a Depositary entitled under the procedures of such Depositary
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders. If such
a record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or take
such request, demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
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SECTION 1.05. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Principal Corporate Trust Office, Attention:
____________________; or
(ii) the Company by any Holder or by the Trustee shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class, postage prepaid, to the Company, to
the attention of its Treasurer, addressed to it at the address of its
principal office specified in the first paragraph of this Indenture or at
any other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or
any Security provides for notice to Holders of any event, such notice shall be
sufficiently given (unless expressly provided otherwise herein or in such
Security) if it is in writing and is mailed, first class, postage prepaid, or it
is delivered to the United States Post Office or a recognized delivery company
(such as Federal Express) for next-day delivery, to each Holder of Securities
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of Securities shall affect the sufficiency of
such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
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SECTION 1.07. Language of Notices, etc. Any request, demand,
authorization, direction, notice, consent or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated provision")
included in, this Indenture by operation of, Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, in any
case where any Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date of any Security or any date on which any Defaulted Interest is
proposed to be paid shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provisions of the Securities or this Indenture)
payment of the principal of, premium, if any, or interest on any Securities need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Stated Maturity, Repayment or Redemption Date or on the
date on which Defaulted Interest is proposed to be paid and, if such payment is
made, no interest shall accrue on such payment for the period from and after any
such Interest Payment Date, Stated Maturity, Repayment or Redemption Date, or
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date on which Defaulted Interest is proposed to be paid as the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities shall
be construed in accordance with and governed by the laws of the State of New
York.
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally. All Securities shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, the Securities of each series shall be
issuable in registered form without coupons.
Definitive Securities, if any, shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02. Form of Securities. Each Security shall be in one of
the forms approved from time to time by or pursuant to a Board Resolution or an
indenture supplemental hereto. Upon or prior to the delivery of a Security in
any such form to the Trustee for authentication, the Company shall deliver to
the Trustee the following:
(i) such indenture supplemental hereto or the Board Resolution by or
pursuant to which such form of Security has been approved, certified by
the Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture;
and
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(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof also shall be established as
provided in this Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication. The
Trustee's certificates of authentication shall be in substantially the form set
forth below:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ],
as Trustee
by____________________________
Authorized Officer
SECTION 2.04. Global Securities. If Securities of a series are
issuable in whole or in part in global form, as specified as contemplated by
Section 3.01, then, notwithstanding clause (xii) of Section 3.01 and the
provisions of Section 3.02, such Global Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased to
reflect exchanges or increased to reflect the issuance of additional
uncertificated securities of such series. Any endorsement of a Global Security
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in registered form and in either
temporary or permanent form.
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and
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delivered under this Indenture is unlimited. The Securities may be issued up to
the aggregate principal amount of Securities from time to time authorized by or
pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities
of each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(i) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate
initial public offering price of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of that series pursuant to
this Article Three or Sections 4.07, 9.06 or 14.03);
(iii) the priority of payment, if any, of the Securities;
(iv) the price or prices (which may be expressed as a percentage of
the aggregate principal amount thereof) at which the Securities will be
issued;
(v) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods by which such rates shall
be determined, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable, the Regular Record Date for the interest payable on any Interest
Payment Date and the basis upon which interest shall be calculated if
other than that of a 360-day year consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and, in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global
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Security may be exchanged in whole or in part for securities other than
Global Securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section
5.02, the Securities may be presented for registration of transfer or
exchange;
(ix) the place or places where, subject to the provisions of
Section 5.02, the principal of (and premium, if any) and interest, if any,
on Securities of the series shall be payable;
(x) the period or periods within which, the price or prices at
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;
(xi) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(xiii) whether any of the Securities will be issued as Original
Issue Discount Securities and the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02;
(xiv) information with respect to book-entry procedures, if any;
(xv) any addition to or change in the Events of Default or
covenants of the Company pertaining to the Securities of the series; and
(xvi) any other terms of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set
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forth, or determined in the manner provided, in such Officers' Certificate or in
any indenture supplemental hereto.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates.
Notwithstanding Section 3.01(ii) and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the Securities
of any series, the Securities of each series shall be issuable only as
Securities without coupons in denominations of $1,000 and any integral multiple
thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, President, Vice Chairman of the Board, Treasurer or a Vice President, and
by its Secretary or one of its Assistant Secretaries. The signatures of any or
all of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee shall, upon
receipt of the Company Order, authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in
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part in the form of one or more Global Securities in registered form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, and (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
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 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that:
(i) the form of such Securities has been established in conformity
with the provisions of this Indenture;
(ii) the terms of such Securities or the manner of determining such
terms have been established in conformity with the provisions of this
Indenture;
(iii) 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 against the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities
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and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series; provided that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that, as of the date of such request, the statements
made in the Officers' Certificate or other certificates delivered pursuant to
Sections 1.02 and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic (promptly confirmed in writing), electronic or written order
of Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
Each Security shall be dated the date of its authentication; and,
unless otherwise specified as contemplated by Section 3.01, any temporary Global
Security referred to in Section 3.04 shall be dated as of the date of original
issuance of such Security.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
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certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security or portion thereof
shall have been duly authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security to the Trustee
for cancellation as provided in Section 3.09 together with a written statement
(which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) stating that such Security or portion thereof has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order and the receipt of the certifications and opinions required under Sections
3.01 and 3.03, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denominations, substantially of the tenor of the
definitive Securities in lieu of which they are issued in registered form and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
(b) Unless otherwise provided pursuant to Section 3.01, except in
the case of temporary Securities in global form, if temporary Securities of any
series are issued, the Company will cause definitive Securities of such series
to be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
The Company shall keep or cause to be kept a register (sometimes referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may
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prescribe, the Company shall provide for the registration of Securities and the
registration of transfers of Securities and the Company may appoint a "Security
Registrar" and/or a "Co-Security Registrar," as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section
5.02 for such purpose in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of such series
of any authorized denominations and of a like aggregate principal amount, tenor
and Stated Maturity.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of such series, of any authorized denominations
and of like aggregate principal amount, tenor and Stated Maturity, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for individual Securities represented
thereby, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.03, the
Company may appoint a successor Depositary with respect to the Securities of
such
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series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.01(vii) shall no longer be effective with respect to the Securities of
such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to
a series of Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series shall authenticate and deliver, without service
charge:
(a) to the Depositary or to each Person specified by such Depositary
a new Security or Securities of the same series, of like tenor and terms
and of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in an authorized denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
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In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee, pursuant to a Company
Order, will authenticate and deliver, Securities in definitive registered form
in authorized denominations.
Upon the exchange of Global Securities for Securities in definitive
form, such Global Securities shall be canceled by the Trustee. Securities issued
in exchange for a Global Security pursuant to this Section 3.05 shall be
registered in such names and in such authorized denominations, and delivered to
such addresses, as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered or to the
Depositary.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for
transfer or exchanged, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
Neither the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
any Securities of any series during a period beginning at the opening of
business 15 days before the day of selection of Securities of such series to be
redeemed and ending at the close of business on the day of the mailing of the
relevant notice of redemption of Securities of such series so selected for
redemption, or (ii) to register the transfer or
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exchange of any Securities or portions thereof so selected for redemption.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If
(i) any mutilated Security is surrendered to the Trustee or the Security
Registrar, or if the Company, the Trustee and the Security Registrar receive
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) there is delivered to the Company, the Trustee and the Security
Registrar such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company, the Trustee or the
Security Registrar that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such mutilated, destroyed, lost or
stolen Security, a new Security of the same series and Stated Maturity and of
like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of or in exchange for any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same series, if
any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 3.01, interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall, unless otherwise provided in such Security, be paid to the
Person in whose name that Security (or one or more
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Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. At the option of the Company, payment of interest
on any Security may be mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or be paid by wire transfer
to an account designated by such Person in writing not later than ten days prior
to the date of such payment; provided, however, that any interest payments made
on Global Securities shall be paid by wire transfer to an account designated by
the Depository.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of his having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest
to the Persons in whose names any such Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first class, postage prepaid, to each Holder at his address as it appears
in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered on
such Special Record Date and
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shall no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities with respect to which there
exists such default may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Security, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving payment
of principal of, premium, if any, and (subject to Section 3.07) interest on such
Security, and for all purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent or the Security Registrar will have the responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interest of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interest, and they shall be fully protected in acting or refraining from acting
on any such information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect
to a series of Securities, all Securities surrendered for payment, registration
of transfer, exchange, repayment or redemption shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered or surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in
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exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture or such Securities. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and the Trustee shall deliver a certificate of
such disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of
each series shall be computed as shall be specified as contemplated by Section
3.01.
SECTION 3.11. [RESERVED]
SECTION 3.12. [RESERVED]
SECTION 3.13. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use) and, if, so, the Trustee
shall use such numbers in notices of redemption or other related material as a
convenience to Holders; provided that any such notice or other related material
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of redemption
or other related material and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and, except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice To Trustee. The election of
the Company to redeem any Securities redeemable at the option of the Company
shall be evidenced by an Officers' Certificate. In case of any redemption at the
election of the Company of the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee and the
Security Registrar of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (ii)
pursuant to an election of the Company
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which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To Be
Redeemed. If less than all the Securities of any series with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Security Registrar from
the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for Securities of
such series. Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be equal to
$1,000 or an integral multiple thereof, and the principal amount of any such
Security which remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series.
The Security Registrar shall promptly notify the Company, the
Trustee and the Co-Security Registrar, if any, in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 1.06, not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the
same terms are to be redeemed, the identification (and, in the case of
partial redemption, the
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respective principal amounts) of the particular Securities
to be redeemed;
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest, if
any, thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(vi) that the redemption is for a sinking fund, if such is the case;
and
(vii) the CUSIP number (or any other number used to identify such
Securities), if any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06(2)
need not identify particular Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, on Company Request, by the Trustee
in the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the
opening of business on any Redemption Date, the Company shall deposit or cause
to be deposited with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 5.03) an amount of money sufficient to pay the Redemption Price of all
the Securities which are to be redeemed on that date.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Securities for redemption in
accordance with said notice, such Securities shall be paid by the Company at the
Redemption Price. Installments of interest on Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.07.
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If any Security called for redemption shall not be paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by such Security, or as otherwise
provided in such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to
be redeemed only in part shall be surrendered at the office or agency of the
Company in a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The
Trustee shall not redeem any Securities (unless all Securities then Outstanding
are to be redeemed) or commence the giving of any notice of redemption of
Securities during the continuance of any Event of Default known to the Trustee,
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem such Securities, provided
funds are deposited with it for such purpose. Any moneys theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be held in trust for the benefit of the Holders and applied in the
manner set forth in Section 7.06; provided, however, that, in case such Event of
Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of
this Article.
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of, premium, if any, and interest
on the Securities of such series in accordance with the terms of the Securities
of such series and this Indenture.
SECTION 5.02. Maintenance of Office or Agency. The Company will
maintain in each Place of Payment for any series of
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Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency in
respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Principal Corporate Trust Office of the Trustee, and in that event the Company
hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes specified above in this Section
and may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints the Trustee
as its Paying Agent in the City of New York with respect to all Securities
having a place of payment in the City of New York.
SECTION 5.03. Money for Security Payments To Be Held in Trust. If
the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, premium or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of, premium, if any, or interest on any Securities of
such series deposit with a Paying Agent a sum sufficient to pay the
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principal, premium or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal, premium or interest on the Securities of such
series; and
(iii) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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, premium, if
any, or interest on any Security of any series and remaining unclaimed for two
years after such principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any
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such repayment, may at the expense of the Company cause to be published once, in
an Authorized Newspaper 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. [RESERVED]
SECTION 5.05. Statement as to Compliance. The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate (which need not comply with Section 1.02)
(provided, however, that one of the signatories of which shall be the Company's
principal executive officer, principal financial officer or principal accounting
officer) stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year and
of performance under this Indenture and under the terms of the Securities
has been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations and complied with all conditions
and covenants under this Indenture and under the terms of the Securities
throughout such year, or, if there has been a default in the fulfillment
of any such obligation, condition or covenant specifying each such default
known to him and the nature and status thereof, and (b) no event has
occurred and is occurring which is, or after notice or lapse of time or
both would become, an Event of Default, or if such an event has occurred
and is continuing, specifying such event known to him and the nature and
status thereof.
For purposes of this Section, compliance or default shall be
determined without regard to any period of grace or requirement of notice
provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and
Franchises. So long as any of the Securities shall be Outstanding, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises to carry on its
business; provided, however, that nothing in this Section 5.06 shall (i) require
the Company to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders, (ii) prevent any
consolidation or merger of the Company, or any
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conveyance or transfer of its property and assets substantially as an entirety
to any person, permitted by Article Ten, or (iii) prevent the liquidation or
dissolution of the Company after any conveyance or transfer of its property and
assets substantially as an entirety to any person permitted by Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
SECTION 6.01. Company To Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, as the case may be, and (ii) 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 requested to be furnished; provided,
however, that if and so long as the Trustee is the Security Registrar for
Securities of a series, no such list need be furnished with respect to such
series of Securities.
SECTION 6.02. Preservation of Information; Communications to
Holders. (i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
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shall, within five Business Days after the receipt of such application, at its
election, either
(a) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 6.02(i), or
(b) inform such applicants as to the approximate number of Holders
of Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.02(i), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or all Holders of
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
6.02(i), a copy 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 mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the 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 of such series or all Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the 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 such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the 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.
(iii) Every Holder of Securities, 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
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Section 6.02(ii), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May 15 of
each year commencing with the year 1999, the Trustee shall mail to each Holder
reports concerning the Trustee and its action under the Indenture as may be
required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by mail
to all Holders of Securities, as their names and addresses appear in the
Security Register and except in the cases of reports under Section 313(b)(2) of
the Trust Indenture Act, to each Holder of a Security of any series whose name
and address appear in the information preserved at the time by the Trustee in
accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, and also with the Commission. The Company
will notify the Trustee when any Securities are listed on any securities
exchange.
SECTION 6.04. Reports by Company. The Company will:
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it will
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time
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to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to
the extent provided in Section 6.03(ii), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (i) and
(ii) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default. "Event of Default", with respect to
any series of Securities, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of 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 or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(ii) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(iii) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
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Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(iv) the entry of a decree or order by a court having jurisdiction
in the premises granting relief in respect of the Company in an
involuntary case under the Federal Bankruptcy Code, adjudging the Company
a bankrupt, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under the Federal Bankruptcy Code or any other applicable
Federal or State bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, custodian, assignee, trustee, sequestrator (or other
similar official) of the Company, or of substantially all of its
properties, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(v) the institution by the Company of proceedings to be adjudicated
a bankrupt, or the consent of the Company to the institution of bankruptcy
proceedings against it, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State bankruptcy,
insolvency or similar law, or the consent by the Company to the filing of
any such petition or to the appointment of a receiver, liquidator,
custodian, assignee, trustee, sequestrator (or other similar official) of
the Company or of substantially all of its properties; or
(vi) any other Event of Default provided with respect to Securities
of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series (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) to be immediately due and payable, by a
notice in writing to the Company (and to the Trustee if given by Holders), and,
upon any such declaration, the same shall become immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences, and any
Event of Default giving rise to such declaration shall not be deemed to have
occurred, if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue installments of interest on all Securities of
such series,
(b) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series,
(c) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series,
and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, the Security Registrar, any Paying Agent, and their agents
and counsel and all other amounts due the Trustee under Section
8.07; and
(ii) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 7.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if:
(i) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days; or
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(ii) default is made in the payment of the principal of or premium,
if any, on any Security of any series at the Maturity thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security, the whole amount then due and payable on any such
Security for principal, premium, if any, and interest, with interest upon the
overdue principal and premium, if any, and (to the extent that payment of such
interest shall be lawful) upon overdue installments of interest, at the rate or
rates prescribed therefor by the terms of any such Security; and, in addition
thereto, such further amount as shall be sufficient to cover the reasonable
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company, wherever situated.
If an Event of Default with respect to any series of Securities
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or the property of the Company or its
creditors, the Trustee (irrespective of whether the principal of any Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in
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respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any
other amounts due the Trustee under Section 8.07) and of the Holders
allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or under the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 8.07, be for the
ratable benefit of the Holders of the Securities of such series in respect of
which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by
the Trustee with respect to a series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee, and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the
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Securities of such series and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
8.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series for principal, premium, if any, and interest, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on Securities of such series for principal,
premium, if any, and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to Securities of such
series;
(ii) the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to
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obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date) and to institute suit for
the enforcement of such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or
any Holder of a Security has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, lost,
destroyed or stolen Securities in the last paragraph of Section 3.06, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 7.12. Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series; provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction;
(iii) subject to the provisions of Section 8.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability; and
(iv) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of, premium, if any, or interest
on any Security of such series; or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against
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the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities for the enforcement of the
payment of the principal of, premium, if any, or interest on any Security on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption or repayment, on or after the Redemption Date or Repayment
Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities. (i) Except during
the continuance of an Event of Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to
Securities of such series, and no implied covenants or obligations shall
be read into this Indenture against the Trustee with respect to such
series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions
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furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificate or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform as to form to the requirements of
the Indenture.
(ii) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and 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.
(iii) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) this Subsection shall not be construed to limit the effect of
Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(iv) Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
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SECTION 8.02. Notice of Default. Within 90 days after the occurrence
of any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to
receive reports pursuant to Section 6.03(ii) notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of, premium, if any, or interest on any Security of such series, or in
the payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of
Securities of such series. For the purpose of this Section, the term "default",
with respect to Securities of any series, means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default with respect
to Securities of such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise
provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this
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Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, security or other paper or document, but the Trustee, in its
discretion, may make further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney and, if so requested to do so by any of the Holders, at the sole
cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(viii) the Trustee shall not be charged with knowledge of any
default (as defined in Section 8.02) or Event of Default unless either (1)
a Responsible Officer of the Trustee shall have actual knowledge of such
default or Event of Default or (2) written notice of such default or Event
of Default shall have been given to the Trustee by the Company or any
Holder;
(ix) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
(x) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article Eight shall
also be afforded to such Paying Agent, Authenticating Agent or Security
Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for
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their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, the Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 8.08 and 8.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees:
(i) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for
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the payment of principal of, premium, if any, or interest on particular
Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 7.01(iv) or (v), the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and
any lien arising hereunder shall survive the resignation or removal of any
Trustee, the discharge of the Company's obligations pursuant to Article Eleven
of this Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To the
extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to
have a conflicting interest with respect to the Securities of any series by
virtue of being Trustee with respect to the Securities of any particular series
of Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee with respect to each series of Securities hereunder
which shall be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000, subject to supervision or
examination by Federal or State authority; provided, however, that, if Section
310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and
doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
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surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect
to any series of Securities after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security of such
series for at least six months; or
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such
series; or
(c) the Trustee shall become incapable of acting with respect to any
series of Securities or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
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then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the
case of the appointment hereunder of a successor
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Trustee with respect to any series of Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective with
respect to all or any series as to which it is resigning as Trustee, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to all or any such series; but, on request of the Company or such
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of such retiring Trustee with respect to all or any
such series; and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to all or any such series, subject nevertheless to its lien, if any,
provided for in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
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such successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates, subject nevertheless to its lien, if any,
provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible with respect to such series
under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder; provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against Company. 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
Section 311 of the Trust Indenture Act regarding the collection of any claims as
a creditor against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may
appoint an Authenticating Agent or Agents, which may include any Affiliate of
the Company, with respect to one or more series of Securities. Such
Authenticating
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Agent or Agents at the option of the Trustee shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Whenever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication or the delivery of
Securities to the Trustee for authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent, a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent and delivery of Securities to the
Authenticating Agent on behalf of the Trustee. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$5,000,000 and subject to supervision or examination by Federal or State
authority. Notwithstanding the foregoing, an Authenticating Agent located
outside the United States may be appointed by the Trustee if previously approved
in writing by the Company and if such Authenticating Agent meets the minimum
capitalization requirements of this Section 8.14. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
(and upon request by the Company shall) terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ],
as Trustee,
by___________________________
As Authenticating Agent
by____________________________
Authorized Officer
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of any Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to
the Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
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(ii) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one
or more series of Securities 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 Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series), or to surrender any right or power herein
conferred upon the Company; or
(iv) 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 the Indenture; provided that such action shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect; or
(v) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable
to less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this
Indenture; provided that any such addition, change or elimination (a)
shall become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture which
is adversely affected by such change in or elimination of such provision
or (b) shall not apply to any Securities Outstanding; or
(vii) to establish the form or terms of Securities of any series as
permitted by Sections 2.02 and 3.01; or
(viii) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities convertible into other securities; or
(ix) to evidence any changes to Section 8.09 as permitted by the
terms thereof; or
(x) to add to or change or eliminate any provision of this
Indenture as shall be necessary or
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desirable in accordance with any amendments to the Trust Indenture Act;
provided such action shall not adversely affect the interest of Holders of
Securities of any series in any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders. With
the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture or indentures (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(i) change the Maturity of the principal of, or the Stated Maturity
of any installment of interest (or premium, if any) on, any Security, or
reduce the principal amount thereof or any premium thereon or the rate of
interest thereon, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 7.02, or
change the method of calculating interest thereon or the coin or currency
in which any Security (or premium, if any, thereon) or the interest
thereon is payable, or reduce the minimum rate of interest thereon, 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 or
repayment, on or after the Redemption Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required
for any waiver of certain defaults hereunder and their consequences)
provided for in this Indenture or reduce the requirements of Section 15.04
for a quorum;
(iii) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13,
except to increase any such percentage or to
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provide that certain other provisions of this Indenture cannot be modified
or waived.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may
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be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to any
Person, unless:
(i) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, premium, if any, and interest on all
the Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing;
and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
10.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein. In the event of any such conveyance or
transfer, the Company as the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and may be dissolved, wound up
and liquidated at any time thereafter.
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ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for and rights to receive payments thereon, and the Trustee, on receipt of a
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when:
(i) either
(a) all Securities theretofore authenticated and delivered
(other than (1) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06,
and (2) 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
(b) all such Securities not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Maturity within
one year, or
(3) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (b) (1), (2) or (3) 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, 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 Maturity or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(iii) 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 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03, shall survive.
SECTION 11.02. Application of Trust Money. Subject to the provisions
of the last paragraph of Section 5.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and 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, premium, if any, and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is
unable to apply any money in accordance with Section 11.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability. No recourse
under or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being
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expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations of the Company, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of 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 sinking fund payment may be subject to reduction as
provided in Section 13.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (ii) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of
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all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee and the Security Registrar
an Officers' Certificate specifying (i) the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, (ii) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 13.02, and (iii) that none of such
Securities has theretofore been so credited and stating the basis for such
credit, and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each sinking fund payment date the Security
Registrar shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 4.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 4.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 4.06 and 4.07 and shall be subject to Section 4.08.
ARTICLE FOURTEEN
Repayment at the Option of Holders
SECTION 14.01. Applicability of Article. Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 14.02. Repayment of Securities. Each Security which is
subject to repayment in whole or in part at the option of the Holder thereof on
a Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
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<PAGE> 72
SECTION 14.03. Exercise of Option, Notice. Each Holder desiring to
exercise such Holder's option for repayment shall, as conditions to such
repayment, surrender the Security to be repaid in whole or in part together with
written notice of the exercise of such option at any office or agency of the
Company in a Place of Payment, not less than 30 nor more than 45 days prior to
the Repayment Date. Such notice, which shall be irrevocable, shall specify the
principal amount of such Security to be repaid, which shall be equal to the
minimum authorized denomination for such Security or an integral multiple
thereof, and shall identify the Security to be repaid and, in the case of a
partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Security so surrendered a
new Security or Securities of the same series and tenor, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Security so surrendered which is
not to be repaid.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
SECTION 14.04. Election of Repayment by Remarketing Entities. The
Company may elect, with respect to Securities of any series which are repayable
at the option of the Holders thereof before their Stated Maturity, at any time
prior to any Repayment Date to designate one or more Remarketing Entities to
purchase, at a price equal to the Repayment Price, Securities of such series
from the Holders thereof who give notice and surrender their Securities in
accordance with Section 14.03.
SECTION 14.05. Securities Payable on the Repayment Date. Notice of
exercise of the option of repayment having been given and the Securities so to
be repaid having been surrendered as aforesaid, such Securities shall, unless
purchased in accordance with Section 14.04, on the Repayment Date become due and
payable at the price therein specified and from and after the Repayment Date
such Securities shall cease to bear interest and shall be paid on the Repayment
Date, except to the extent provided above, shall be void, unless the Company
shall default in the payment of such price, in which case the Company shall
continue to be obligated for the principal amount of such Securities and shall
be obligated to pay interest on such
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principal amount at the rate prescribed therefor by such Securities from time to
time until payment in full of such principal amount.
ARTICLE FIFTEEN
Meetings of Holders of Securities
SECTION 15.01. Purposes for Which Meetings May Be Called. A meeting
of Holders of Securities of any series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 15.02. Call, Notice and Place of Meetings. (i) The Trustee
may at any time call a meeting of Holders of Securities of any series issuable
for any purpose specified in Section 15.01, to be held at such time and at such
place in the City of New York, New York or Wilmington, Delaware as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.06, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any such series, shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 15.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be, may
determine the time and the place in the City of New York, New York or
Wilmington, Delaware for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (i) of this Section.
SECTION 15.03. Persons Entitled to Vote at Meetings. To be entitled
to vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
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<PAGE> 74
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 15.04. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that, if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may only
be given by the Holders of a greater percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such greater
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence of
a quorum in any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.02(i), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given only by the Holders of a greater percentage in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the Holders of such greater percentage
in principal amount of the Outstanding Securities of that series; and provided
further that, except as limited by the provisos to Section 9.02, any resolution
with
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<PAGE> 75
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken only by the Holders of a specified percentage, which is less than a
majority in principal amount of the Outstanding Securities of a series, may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series, whether or not present
or represented at the meeting.
SECTION 15.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 15.02(ii), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted
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<PAGE> 76
at any meeting in respect of any Security challenged as not Outstanding and
ruled by the chairperson of the meeting not to be Outstanding. The chairperson
of the meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 15.06. Counting Votes and Recording Action of Meetings. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots, on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairperson of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record, at least in triplicate,
of the proceedings of each meeting of Holders of Securities of any series shall
be prepared by the secretary of the meeting, and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 15.02 and, if applicable, Section 15.04.
Each copy shall be signed and verified by the affidavits of the permanent
chairperson and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
Miscellaneous
SECTION 16.01. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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<PAGE> 77
[ ] hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
71
<PAGE> 78
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
WILMINGTON TRUST CORPORATION
By____________________________
Name:
Title:
[Seal]
Attest: [CORPORATE SEAL]
____________________________
Assistant Secretary
[ ]
as Trustee,
By____________________________
Name:
Title:
[Seal]
Attest: [CORPORATE SEAL]
____________________________
72
<PAGE> 79
STATE OF __________ :
: ss.
COUNTY OF __________ :
On this day of ___________, 1998, before me personally came to me
known, , who, being by me duly sworn, did depose and say that
he resides at [ ]; that he is [ ] of WILMINGTON
TRUST CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
____________________________
Notary Public
[Notarial Seal]
<PAGE> 80
STATE OF __________ :
: ss.
COUNTY OF __________ :
On this day of ____________, 1998, before me personally appeared ,
to me known, who, being by me duly sworn, did depose and say that he resides at
; that he is a of [ ], one of the parties described in and
which executed the foregoing instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
____________________________
Notary Public
[Notarial Seal]
<PAGE> 81
EXHIBIT A
FORM OF SENIOR NOTE DUE _____
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF WILMINGTON TRUST CORPORATION AND ARE NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY
OTHER GOVERNMENTAL AGENCY.
WILMINGTON TRUST CORPORATION
_____% SENIOR NOTE DUE _____
REGISTERED CUSIP __________
No. _____
WILMINGTON TRUST CORPORATION, a Delaware corporation (herein called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
[CEDE & CO.]
or registered assigns, the principal sum of _______________ MILLION DOLLARS
($XXX,000,000) on __________ (the "Maturity Date"), and to pay interest on said
principal sum semiannually on __________ and __________ in each year
(individually referred to as an "Interest Payment Date" and collectively as the
"Interest Payment Dates"), commencing __________, at the rate of _____% per
annum, computed on the basis of a 360-day year consisting of twelve 30-day
months, from __________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, until the principal hereof is paid
or made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be the __________ or __________ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date, provided that interest payable on the Maturity Date shall be payable to
the Person to whom the principal hereof is payable. If any Interest Payment Date
is not a Business Day, interest will be paid on the next succeeding Business
Day. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to
<PAGE> 82
be fixed by the Trustee, (notice of which shall be given to the Holder of this
Note not less than 10 days prior to such Special Record Date), or be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange upon which the Notes of the series shown above may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in such Indenture. Payment of the principal of and interest on
this Note due on the Maturity Date will be made in immediately available funds
upon presentation of this Note. For the purposes of this Note, "Business Day"
means any day, other than a Saturday or Sunday, on which banking institutions in
the City of Wilmington, Delaware and any Place of Payment, if other than
Wilmington, Delaware, are open for business. Payment of the principal of and
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in ______________________________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
option of the Company, payment of interest (other than interest payable on the
Maturity Date) may be paid by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register at the close of
business on the Regular Record Date; and provided further, however, that, as
long as this Note is held by the Depository or its nominee, payment of principal
and interest will be made by wire transfer to an account designated by the
Depository or its nominee.
This Note is one of a duly authorized issue of [senior securities] of the
series designated above of the Company (herein called the "Notes"), issued and
to be issued under an indenture dated as of _______________, ____ (the
"Indenture"), between the Company and ____________________, as trustee (the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated above,
limited (except as provided in the Indenture) in aggregate principal amount to
$XXX,000,000.
The Notes of this series are not redeemable prior to maturity.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series under the
Indenture to be affected at any time by the Company with the consent of the
Holders of a majority in principal amount of the Notes at the time Outstanding
of each series to be affected. The Indenture also contains provisions
permitting, subject to certain limitations, the Holders of a majority in
principal amount of the Notes of each series at the time Outstanding, on behalf
of the Holders of all Notes of such series, to waive certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional to pay the principal of and interest on this Note at the
times, places and rate, and in the coin or currency herein and in the Indenture
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registerable in the Security Register of the
Company upon surrender of this Note for registration of transfer at the office
or
2
<PAGE> 83
agency of the Company in any place where the principal of and interest on this
Note are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of the same series of authorized denominations
and for the same aggregate principal amount will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
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
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note shall be construed in accordance with and governed by the laws of
the State of New York.
All terms not defined herein shall have the respective meanings ascribed to
them in the Indenture referred to herein.
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under such Indenture, this Note shall not be
entitled to any benefits under such Indenture or be valid or obligatory for any
purpose.
3
<PAGE> 84
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
under its corporate seal.
WILMINGTON TRUST CORPORATION
Dated: _______________
By
Title:
ATTEST:
By
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein issued under the
within-mentioned Indenture.
____________________________
as Trustee
By
Authorized Officer
4
<PAGE> 85
____________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT --as tenants by the entireties
JT ENT -- as joint tenants and not as tenants in common
UNIF GIFT MIN ACT..........Custodian...............
(Cust) (Minor)
under Uniform Gift to Minors Act
..................................
(State)
Additional abbreviations may be used though not in the above list.
____________________________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
Name and address of assignee, including zip code, must be printed or typewritten
________________________________________________________________________________
____________________ principal amount of the attached Note, and the applicable
rights thereunder, hereby irrevocably constituting and appointing
__________________________________________________________________________
Attorney to transfer said Note on the books of the within Company (if the full
principal amount of said Note is transferred) or to issue new Notes to the
undersigned and the transferee (if only a portion of the principal amount of
said Note is transferred), with full power of substitution in the premises.
Dated:____________________________ ___________________________________
___________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and must be guaranteed by a commercial
bank or trust company having its principal office or a correspondent in The City
of New York or by a member of the New York Stock Exchange.
5
<PAGE> 1
EXHIBIT 4.2
WILMINGTON TRUST CORPORATION
AND
___________________________,
TRUSTEE
INDENTURE
Dated as of __________, 1998
SUBORDINATED DEBT SECURITIES
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS OF THE COMPANY.................................................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions................................................................. 1
SECTION 1.02. Compliance Certificates and Opinions........................................ 9
SECTION 1.03. Form of Documents Delivered to Trustee...................................... 10
SECTION 1.04. Acts of Holders............................................................. 10
SECTION 1.05. Notices, etc., to Trustee and Company....................................... 12
SECTION 1.06. Notices to Holders; Waiver.................................................. 13
SECTION 1.07. Language of Notices, etc.................................................... 13
SECTION 1.08. Conflict with Trust Indenture Act........................................... 13
SECTION 1.09. Effect of Headings and Table of
Contents.................................................................... 14
SECTION 1.10. Successors and Assigns...................................................... 14
SECTION 1.11. Separability Clause......................................................... 14
SECTION 1.12. Benefits of Indenture....................................................... 14
SECTION 1.13. Legal Holidays.............................................................. 14
SECTION 1.14. Governing Law............................................................... 14
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally............................................................. 15
SECTION 2.02. Form of Securities.......................................................... 15
SECTION 2.03. Form of Trustee's Certificate of
Authentication.............................................................. 16
SECTION 2.04. Global Securities........................................................... 16
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms............................................................. 16
SECTION 3.02. Denominations............................................................... 19
SECTION 3.03. Execution, Authentication, Delivery and
Dating...................................................................... 19
SECTION 3.04. Temporary Securities........................................................ 22
SECTION 3.05. Registration, Registration of Transfer
and Exchange................................................................ 23
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.................................................................. 26
SECTION 3.07. Payment of Interest; Interest Rights
Preserved................................................................... 27
SECTION 3.08. Persons Deemed Owners....................................................... 28
SECTION 3.09. Cancellation................................................................ 28
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C>
SECTION 3.10. Computation of Interest..................................................... 29
SECTION 3.11. [RESERVED].................................................................. 29
SECTION 3.12. [RESERVED].................................................................. 29
SECTION 3.13. CUSIP Numbers............................................................... 29
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article.................................................... 29
SECTION 4.02. Election To Redeem; Notice To Trustee....................................... 29
SECTION 4.03. Selection by Security Registrar of
Securities To Be Redeemed................................................... 30
SECTION 4.04. Notice of Redemption........................................................ 30
SECTION 4.05. Deposit of Redemption Price................................................. 31
SECTION 4.06. Securities Payable on Redemption Date....................................... 31
SECTION 4.07. Securities Redeemed in Part................................................. 32
SECTION 4.08. Redemption Suspended During Event of
Default..................................................................... 32
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and
Interest.................................................................... 33
SECTION 5.02. Maintenance of Office or Agency............................................. 33
SECTION 5.03. Money for Security Payments To Be Held
in Trust.................................................................... 33
SECTION 5.04. [Reserved].................................................................. 35
SECTION 5.05. Statement as to Compliance.................................................. 35
SECTION 5.06. Maintenance of Corporate Existence,
Rights and Franchises....................................................... 36
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
SECTION 6.01. Company To Furnish Trustee Names and
Addresses of Holders........................................................ 36
SECTION 6.02. Preservation of Information;
Communications to Holders................................................... 36
SECTION 6.03. Reports by Trustee.......................................................... 38
SECTION 6.04. Reports by Company.......................................................... 38
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default........................................................... 39
SECTION 7.02. Acceleration of Maturity; Rescission and
Annulment................................................................... 40
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee...................................................... 41
SECTION 7.04. Trustee May File Proofs of Claim............................................ 42
</TABLE>
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<TABLE>
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SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities.................................................... 43
SECTION 7.06. Application of Money Collected.............................................. 43
SECTION 7.07. Limitation on Suits......................................................... 44
SECTION 7.08. Unconditional Right of Holders To
Receive Principal, Premium and Interest..................................... 45
SECTION 7.09. Restoration of Rights and Remedies.......................................... 46
SECTION 7.10. Rights and Remedies Cumulative.............................................. 46
SECTION 7.11. Delay or Omission Not Waiver................................................ 46
SECTION 7.12. Control by Holders.......................................................... 46
SECTION 7.13. Waiver of Past Defaults..................................................... 47
SECTION 7.14. Undertaking for Costs....................................................... 47
SECTION 7.15. Waiver of Stay or Extension Laws............................................ 48
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities......................................... 48
SECTION 8.02. Notice of Default........................................................... 49
SECTION 8.03. Certain Rights of Trustee................................................... 50
SECTION 8.04. Not Responsible for Recitals or Issuance
of Securities............................................................... 51
SECTION 8.05. May Hold Securities......................................................... 51
SECTION 8.06. Money Held in Trust......................................................... 52
SECTION 8.07. Compensation and Reimbursement.............................................. 52
SECTION 8.08. Disqualification; Conflicting
Interests................................................................... 53
SECTION 8.09. Corporate Trustee Required;
Eligibility................................................................. 53
SECTION 8.10. Resignation and Removal; Appointment of
Successor................................................................... 53
SECTION 8.11. Acceptance of Appointment by Successor...................................... 55
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee........................................... 57
SECTION 8.13. Preferential Collection of Claims
Against Company............................................................. 57
SECTION 8.14. Appointment of Authenticating Agents........................................ 57
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent
of Holders.................................................................. 59
SECTION 9.02. Supplemental Indentures With Consent of
Holders..................................................................... 60
SECTION 9.03. Execution of Supplemental Indentures........................................ 62
SECTION 9.04. Effect of Supplemental Indentures........................................... 62
SECTION 9.05. Conformity with Trust Indenture Act......................................... 62
SECTION 9.06. Reference in Securities to Supplemental
Indentures.................................................................. 62
SECTION 9.07. Subordination Unimpaired.................................................... 62
</TABLE>
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<TABLE>
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ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on
Certain Terms.............................................................. 63
SECTION 10.02. Successor Corporation Substituted.......................................... 63
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of
Indenture.................................................................. 64
SECTION 11.02. Application of Trust Money................................................. 65
SECTION 11.03. Reinstatement.............................................................. 65
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability........................................ 65
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article................................................... 66
SECTION 13.02. Satisfaction of Sinking Fund Payments
with Securities............................................................ 67
SECTION 13.03. Redemption of Securities for Sinking
Fund....................................................................... 67
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement To Subordinate................................................... 67
SECTION 14.02. Distribution on Dissolution,
Liquidation and Reorganization; Subrogation
of Securities.............................................................. 68
SECTION 14.03. Payments on Securities Prohibited
During Event of Default under Senior
Indebtedness............................................................... 71
SECTION 14.04. Payments on Securities Permitted........................................... 72
SECTION 14.05. Authorization of Holders to Trustee To
Effect Subordination....................................................... 72
SECTION 14.06. Notice to Trustee.......................................................... 72
SECTION 14.07. Right of Trustee To Hold Senior
Indebtedness or General Obligations........................................ 73
SECTION 14.08. Article Fourteen Not To Prevent
Defaults or Events of Default.............................................. 73
</TABLE>
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<TABLE>
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SECTION 14.09. Payment of Proceeds in Certain Cases....................................... 73
ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article................................................... 75
SECTION 15.02. Repayment of Securities.................................................... 75
SECTION 15.03. Exercise of Option; Notice................................................. 75
SECTION 15.04. Election of Repayment by Remarketing
Entities................................................................... 76
SECTION 15.05. Securities Payable on the Repayment
Date....................................................................... 76
ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be
Called..................................................................... 76
SECTION 16.02. Call, Notice and Place of Meetings......................................... 76
SECTION 16.03. Persons Entitled To Vote at Meetings....................................... 77
SECTION 16.04. Quorum, Action............................................................. 77
SECTION 16.05. Determination of Voting Rights; Conduct
and Adjournment of Meetings................................................ 78
SECTION 16.06. Counting Votes and Recording Action of
Meetings................................................................... 79
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts............................................................... 80
EXHIBIT A: Form of Subordinated Note.
</TABLE>
(v)
<PAGE> 7
THIS INDENTURE is entered into as of __________,
1998, between WILMINGTON TRUST CORPORATION, a corporation
organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), having its principal
executive office at Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890, and __________________, a
_________________ (hereinafter called the "Trustee"), having
its principal corporate trust office at ____________________.
RECITALS OF THE COMPANY
The Company deems it necessary or advisable from time to time
to issue its unsecured subordinated debentures, notes, bonds and other evidences
of indebtedness to be issued in one or more series (hereinafter called the
"Securities") as hereinafter set forth, and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as contemplated by
Section 3.01;
<PAGE> 8
(ii) all references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Indenture. The words
"herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(iii) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(iv) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as may be otherwise expressly
provided herein or in one or more indentures supplemental hereto, the
term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on
behalf of the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in the English
language, customarily published on each Business Day, whether or not published
on Saturdays, Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of such
place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same
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<PAGE> 9
or in different newspapers in the same city meeting the foregoing requirements
and, in each case, on any Business Day.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice Chairman of the Board, any Vice President, the Treasurer,
the Secretary, the Comptroller, any Assistant Controller, any Assistant
Treasurer or any Assistant Secretary of the Company.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
on which banking institutions in the City of Wilmington, Delaware and any Place
of Payment for the Securities are open for business.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"corporation" includes corporations, associations, companies
and business trusts.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section
3.07.
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<PAGE> 10
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of a Global Security, the Person
designated as Depositary by the Company pursuant to Section 3.01 until a
successor Depositary shall have been appointed pursuant to Section 3.05, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Securities of that series.
"Dollar" or "$" means the coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any statute successor thereto.
"General Obligations" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 3.01, all obligations of
the Company to make payment on account of claims in respect of derivative
products such as interest and foreign exchange rate contracts, commodity
contracts and similar arrangements, other than (i) obligations on account of
Senior Indebtedness, (ii) obligations on account of indebtedness for money
borrowed ranking pari passu with or subordinate to the Securities and (iii)
obligations which by their terms are expressly stated not to be superior in
right of payment to the Securities or to rank on a parity with the Securities;
provided, however, that, notwithstanding the foregoing, in the event that any
rule, guideline or interpretation promulgated or issued by the Board of
Governors of the Federal Reserve System (or other competent regulatory agency or
authority), as from time to time in effect, establishes or specifies criteria
for the inclusion in regulatory capital of subordinated debt of a bank holding
company requiring that such subordinated debt be subordinated to obligations to
creditors in addition to those set forth above, then the term "General
Obligations" shall also include such additional obligations to creditors, as
from time to time in effect pursuant to such rules, guidelines or
interpretations. For purposes of this definition, "claim" shall have the meaning
assigned thereto in Section 101(5) of the Bankruptcy Code of 1978, as amended to
the date of this instrument.
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<PAGE> 11
"Global Security" means a Security issued to evidence all or a
part of a series of Securities in accordance with Section 3.03.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"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", when used with respect to any series
of Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security (or any installment of principal)
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, a Vice Chairman of the Board or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee. Each such certificate shall contain the statements
set forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be an employee of
the Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion shall contain the statements set forth in Section 1.02, if applicable.
"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 7.02.
"Outstanding", when used with respect to Securities or
Securities of any series, means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the
5
<PAGE> 12
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) such Securities in lieu of which other Securities have
been authenticated and delivered pursuant to Section 3.06 of this
Indenture;
provided, however, that, in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities 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 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where, subject to the provisions of
Section 5.02, the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified in accordance with Section
3.01.
6
<PAGE> 13
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the
Trustee, at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
instrument is at the address set forth in the first paragraph of this
instrument.
"Principal Paying Agent" means the Paying Agent, if any,
designated as such by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price specified in such Security at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security
on any Interest Payment Date means the date, if any, specified in such Security
as the "Regular Record Date".
"Remarketing Entity", when used with respect to the Securities
of any series which are repayable at the option of the Holders thereof before
their Stated Maturity, means any Person designated by the Company to purchase
any such Securities.
"Repayment Date", when used with respect to any Security to be
repaid upon exercise of an option for repayment by the Holder, means the date
fixed for such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to
be repaid upon exercise of an option for repayment by the Holder, means the
price at which it is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred
7
<PAGE> 14
because of his knowledge of and familiarity with the particular subject.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section
3.05.
"Senior Indebtedness" means the principal of, premium, if any,
and interest on (i) all of the Company's indebtedness for money borrowed, other
than the Securities, whether outstanding on the date of execution of this
Indenture or thereafter created, assumed or incurred, except such indebtedness
as is by its terms expressly stated to be not superior in right of payment to
the Securities or to rank pari passu with the Securities and (ii) any deferrals,
renewals or extensions of any such Senior Indebtedness. The term "indebtedness
for money borrowed" as used in the foregoing sentence shall include, without
limitation, any obligation of, or any obligation guaranteed by, the Company for
the repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, and any deferred obligation for the payment
of the purchase price of property or assets.
"Special Record Date" for the payment of any Defaulted
Interest means the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security, or such installment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a
corporation at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more Subsidiaries of
the Company, or by the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means
stock having ordinary voting power for the election of directors irrespective of
whether or not stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include
8
<PAGE> 15
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise
expressly provided) means the Trust Indenture Act of 1939, as in force at the
date as of which this instrument was executed, and, to the extent required by
law, as amended.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"vice president", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except as otherwise
expressly provided in this Indenture) shall include:
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as
9
<PAGE> 16
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders or Holders of any series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing
or may be embodied in and evidenced in a record of any meeting. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the
10
<PAGE> 17
"Act" of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 8.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Securities shall be proved by the
Security Register.
(iv) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of any action taken, suffered or omitted by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(v) The Company may, in the circumstances permitted by the
Trust Indenture Act, set a record date for purposes of determining the identity
of Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
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(vi) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents, each of which may do so
pursuant to such appointment with regard to all or any part of such principal
amount. Any notice given or action taken by a Holder or its agents with regard
to different parts of such principal amount pursuant to this paragraph shall
have the same effect as if given or taken by separate Holders of each such
different part.
(vii) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that is the
Holder of a Global Security, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given or
taken by Holders, and a Depositary that is the Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of interests in any such
Global Security through such Depositary's standing instructions and customary
practices.
(viii) The Company may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any Global
Security held by a Depositary entitled under the procedures of such Depositary
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders. If such
a record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or take
such request, demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its
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Principal Corporate Trust Office, Attention: __________________, or
(ii) the Company by any Holder or by the Trustee shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid, to the
Company, to the attention of its Treasurer, addressed to it at the address of
its principal office specified in the first paragraph of this Indenture or at
any other address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture
or any Security provides for notice to Holders of any event, such notice shall
be sufficiently given (unless expressly provided otherwise herein or in such
Security) if it is in writing and is mailed, first class, postage prepaid, or it
is delivered to the United States Post Office or a recognized delivery company
(such as Federal Express) for next-day delivery, to each Holder of Securities
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders of Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of Securities shall affect the sufficiency of
such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.07. Language of Notices, etc. Any request, demand,
authorization, direction, notice, consent or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the
extent that any provision of this Indenture limits,
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qualifies or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in, this Indenture by operation of, Sections
310 and 318, inclusive, of the TIA, such imposed duties or incorporated
provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.11. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, the Holders and, to the
extent provided in Article Fourteen hereof, the Holders of Senior Indebtedness
and creditors in respect of General Obligations, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, in any
case where any Interest Payment Date, Stated Maturity, Repayment Date or
Redemption Date of any Security or any date on which any Defaulted Interest is
proposed to be paid shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provisions of the Securities or this Indenture)
payment of the principal of, premium, if any, or interest on any Securities need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Stated Maturity, Repayment or Redemption Date or on the
date on which Defaulted Interest is proposed to be paid and, if such payment is
made, no interest shall accrue on such payment for the period from and after any
such Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date
or date on which Defaulted Interest is proposed to be paid, as the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities
shall be construed in accordance with and governed by the laws of the State of
New York.
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ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally. All Securities shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, the Securities of each series shall be
issuable in registered form without coupons.
Definitive Securities, if any, shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02. Form of Securities. Each Security shall be in
one of the forms approved from time to time by or pursuant to a Board Resolution
or an indenture supplemental hereto. Upon or prior to the delivery of a Security
in any such form to the Trustee for authentication, the Company shall deliver to
the Trustee the following:
(i) such indenture supplemental hereto or the Board Resolution
by or pursuant to which such form of Security has been approved,
certified by the Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of
this Indenture;
(iii) the Company Order required by Section 3.03 of this
Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global
form as permitted by Section 3.04, the form thereof also shall be established as
provided in this Section 2.02.
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SECTION 2.03. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the form
set forth below.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ], as
Trustee
by
______________________________
Authorized Officer
SECTION 2.04. Global Securities. If Securities of a series are
issuable in whole or in part in global form, as specified as contemplated by
Section 3.01, then, notwithstanding clause (xii) of Section 3.01 and the
provisions of Section 3.02, such Global Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased to
reflect exchanges or increased to reflect the issuance of additional
uncertificated securities of such series. Any endorsement of a Global Security
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in registered form and in
either temporary or permanent form.
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ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All
Securities of each series issued under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time or
times of the authentication and delivery or Maturity of the Securities of such
series. There shall be established in or pursuant to a Board Resolution, and set
forth in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(i) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or
aggregate initial public offering price of the Securities of the series
which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of
that series pursuant to this Article Three or Sections 4.07, 9.06 or
15.03);
(iii) the priority of payment, if any, of the Securities;
(iv) the price or prices (which may be expressed as a
percentage of the aggregate principal amount thereof) at which the
Securities will be issued;
(v) the date or dates on which the principal and premium, if
any, of the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods by which such
rates shall be determined, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable, the Regular Record Date for the interest
payable on any Interest Payment Date and the basis upon which interest
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shall be calculated if other than that of a 360-day year consisting of
twelve 30-day months;
(vii) the extent to which any of the Securities will be
issuable in temporary or permanent global form, and, in such case, the
Depositary for such Global Security or Securities, the terms and
conditions, if any, upon which such Global Security may be exchanged in
whole or in part for Securities other than Global Securities, and the
manner in which any interest payable on a temporary or permanent Global
Security will be paid, whether or not consistent with Section 3.04 or
3.05;
(viii) the office or offices or agency where, subject to
Section 5.02, the Securities may be presented for registration of
transfer or exchange;
(ix) the place or places where, subject to the provisions of
Section 5.02, the principal of (and premium, if any) and interest, if
any, on Securities of the series shall be payable;
(x) the period or periods within which, the price or prices at
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;
(xi) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(xii) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(xiii) whether any of the Securities will be issued as
Original Issue Discount Securities and the portion of the principal
amount of such Securities which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 7.02;
(xiv) information with respect to book-entry procedures, if
any;
(xv) any addition to or change in the Events of Default or
covenants of the Company pertaining to the Securities of the series;
and
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(xvi) any other terms of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and set forth, or determined in the manner
provided, in such Officers' Certificate or in any indenture supplement hereto.
Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption Dates or
Repayment Dates.
All Securities shall be subordinate and junior in right of
payment to the obligations of the Company to holders of Senior Indebtedness and
creditors in respect of General Obligations of the Company as provided in
Article Fourteen.
Notwithstanding Section 3.01(ii) and unless otherwise
expressly provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and additional
Securities of such series may be issued up to the maximum aggregate principal
amount authorized with respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series
shall be issuable in such form and denominations as shall be specified as
contemplated by Section 3.01. In the absence of any specification with respect
to the Securities of any series, the Securities of each series shall be issuable
only as Securities without coupons in denominations of $1,000 and any integral
multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the
Board, President, Vice Chairman of the Board, Treasurer or a Vice President, and
by its Secretary or one of its Assistant Secretaries. The signatures of any or
all of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
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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, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee shall, upon receipt of the Company Order, authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
If the Company shall establish pursuant to Section 3.01 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities in registered form, then the Company shall execute
and the Trustee shall, in accordance with this Section and a Company Order for
the authentication and delivery of such Global Securities with respect to such
series, authenticate and deliver one or more Global Securities in permanent or
temporary form that (i) shall represent and shall be denominated in an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary and (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
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 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that:
(i) the form of such Securities has been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities or the manner of determining
such terms have been established in conformity with the provisions of
this Indenture;
(iii) 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 against the
Company in accordance with their terms, subject to bankruptcy,
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insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely 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 3.01 and of this
Section 3.03, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series; provided that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that, as of the date of such request, the statements
made in the Officers' Certificate or other certificates delivered pursuant to
Sections 1.02 and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic (promptly confirmed in writing), electronic or written order
of Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
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Each Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 3.01, any temporary
Global Security referred to in Section 3.04 shall be dated as of the date of
original issuance of such Security.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature of an authorized officer,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security or portion thereof
shall have been duly authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security to the Trustee
for cancellation as provided in Section 3.09 together with a written statement
(which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) stating that such Security or portion thereof has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Company may execute, and
upon Company Order and the receipt of the certifications and opinions required
under Sections 3.01 and 3.03, the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denominations, substantially of the
tenor of the definitive Securities in lieu of which they are issued in
registered form and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
(b) Unless otherwise provided pursuant to Section 3.01, except
in the case of temporary Securities in global form, if temporary Securities of
any series are issued, the Company will cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any
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<PAGE> 29
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of such
series of authorized denominations. Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 3.05. Registration, Registration of Transfer and
Exchange. The Company shall keep or cause to be kept a register (sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and the registration of transfers of Securities and the Company
may appoint a "Security Registrar" and/or any "Co-Security Registrar", as may be
appropriate, to keep the Security Register. Such Security Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. At all reasonable times the information contained in
such Security Register shall be available for inspection by the Trustee at the
office of the Security Registrar.
Upon surrender for registration of transfer of any Security of
any series at the office or agency of the Company maintained pursuant to Section
5.02 for such purpose in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of such series
of any authorized denominations and of a like aggregate principal amount, tenor
and Stated Maturity.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of such series, of any authorized denominations
and of like aggregate principal amount, tenor and Stated Maturity, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for individual Securities
represented thereby, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
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<PAGE> 30
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.03, the
Company may appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.01(vii) shall no longer be effective with respect to the Securities of
such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series shall authenticate and deliver, without service
charge:
(a) to the Depositary or to each Person specified by such
Depositary a new Security or Securities of the same series, of like
tenor and terms and of any authorized
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<PAGE> 31
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(b) to such Depositary a new Global Security of like tenor and
terms and in an authorized denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security
and the aggregate principal amount of Securities delivered to Holders
thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee, pursuant to a Company
Order, will authenticate and deliver, Securities in definitive registered form
in authorized denominations.
Upon the exchange of Global Securities for Securities in
definitive form, such Global Securities shall be canceled by the Trustee.
Securities issued in exchange for a Global Security pursuant to this Section
3.05 shall be registered in such names and in such authorized denominations, and
delivered to such addresses, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such Securities
to the Persons in whose names such Securities are so registered or to the
Depositary.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered
for transfer or exchanged, no service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
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Neither the Company, the Security Registrar nor any
Co-Security Registrar shall be required (i) to issue, register the transfer of
or exchange any Securities of any series during a period beginning at the
opening of business 15 days before the day of selection of Securities of such
series to be redeemed and ending at the close of business on the day of the
mailing of the relevant notice of redemption of Securities of such series so
selected for redemption, or (ii) to register the transfer or exchange of any
Securities or portions thereof so selected for redemption.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities. If (i) any mutilated Security is surrendered to the Trustee or the
Security Registrar, or if the Company, the Trustee and the Security Registrar
receive evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) there is delivered to the Company, the Trustee and the
Security Registrar such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Company, the
Trustee or the Security Registrar that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such mutilated, destroyed, lost or
stolen Security, a new Security of the same series and Stated Maturity and of
like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security or in exchange shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same series, if
any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
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with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall, unless otherwise provided in such Security, be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. At the option of the Company, payment of interest on any
Security may be mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or be paid by wire transfer to an
account designated by such Person in writing not later than ten days prior to
the date of such payment; provided, however, that any interest payments made on
Global Securities shall be paid by wire transfer to an account designated by the
Depository.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of his having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted
Interest to the Persons in whose names any such Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first class, postage prepaid,
to each Holder at his
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address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
clause (ii).
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities with respect to which there exists such default
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment
for registration of transfer of any Security, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of, premium, if any, and (subject to Section
3.07) interest on such Security, and for all purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent or the Security Registrar will have the responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interest of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interest, and they shall be fully protected in acting or refraining from acting
on any such information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with
respect to a series of Securities, all Securities surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
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purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture or such Securities. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and the Trustee shall deliver a certificate of such disposition to
the Company.
SECTION 3.10. Computation of Interest. Interest on the
Securities of each series shall be computed as shall be specified as
contemplated by Section 3.01.
SECTION 3.11. [RESERVED]
SECTION 3.12. [RESERVED]
SECTION 3.13. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if, so, the
Trustee shall use such numbers in notices of redemption or other related
material as a convenience to Holders; provided that any such notice or other
related material may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of redemption or other related material and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and, except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice To Trustee. The
election of the Company to redeem any Securities redeemable at the option of the
Company shall be evidenced by an Officers' Certificate. In case of any
redemption at the election of the Company of the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee),
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notify the Trustee and the Security Registrar of such Redemption Date and of the
principal amount of Securities of such series to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To
Be Redeemed. If less than all the Securities of any series with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Security Registrar
from the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for Securities of
such series. Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be equal to
$1,000 or an integral multiple thereof and the principal amount of any such
Security which remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series.
The Security Registrar shall promptly notify the Company, the
Trustee and the Co-Security Registrar, if any, in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal of such Security which has been or is to
be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 1.06, not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
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(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series
having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of
the particular Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed, and that
interest, if any, thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(vi) that the redemption is for a sinking fund, if such is the
case; and
(vii) the CUSIP number (or any other number used to identify
such Securities), if any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section
1.06(2) need not identify particular Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, on Company Request, by
the Trustee in the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the
opening of business on any Redemption Date, the Company shall deposit or cause
to be deposited with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 5.03) an amount of money sufficient to pay the Redemption Price of all
the Securities which are to be redeemed on that date.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Securities for redemption in
accordance with said notice, such Securities shall be paid by the Company at the
Redemption Price. Installments of interest on Securities whose Stated Maturity
is on or prior to
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the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such on the close of business on
the relevant Regular Record Dates according to their terms and the provisions of
Section 3.07.
If any Security called for redemption shall not be paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by such Security, or as otherwise
provided in such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at the office or agency of
the Company in a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all Securities then
Outstanding are to be redeemed) or commence the giving of any notice of
redemption of Securities during the continuance of any Event of Default known to
the Trustee, except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall, subject to the
provisions of Section 14.04, redeem such Securities, provided funds are
deposited with it for such purpose. Subject to the rights of the holders of
Senior Indebtedness and creditors in respect of General Obligations, except as
aforesaid, any moneys theretofore or thereafter received by the Trustee shall,
during the continuance of such Event of Default, be held in trust for the
benefit of the Holders and applied in the manner set forth in Section 7.06;
provided, however, that, in case such Event of Default shall have been waived as
provided herein or otherwise cured, such moneys shall thereafter be held and
applied in accordance with the provisions of this Article.
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ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of, premium, if any, and interest
on the Securities of such series in accordance with the terms of the Securities
of such series and this Indenture.
SECTION 5.02. Maintenance of Office or Agency. The Company
will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency in respect of any
series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Principal Corporate
Trust Office of the Trustee, and in that event the Company hereby appoints the
Trustee as its agent to receive such respective presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of such purposes specified above in this
Section and may constitute and appoint one or more Paying Agents for the payment
of such Securities, in one or more other cities, and may from time to time
rescind such designations and appointments; provided, however, that no such
designation, appointment or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints the Trustee
as its Paying Agent in the City of New York with respect to all series of
Securities having a Place of Payment in the City of New York.
SECTION 5.03. Money for Security Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying
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Agent for any series of Securities, it will, on or before each due date of the
principal of, premium, if any, or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, at or prior to the opening of business on
each due date of the principal of, premium, if any, or interest on any
Securities of such series deposit with a Paying Agent a sum sufficient to pay
the principal, premium or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal, premium or interest on the Securities of such
series; and
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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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, premium,
if any, or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust, and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
each Place of Payment, 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. [Reserved]
SECTION 5.05. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate (which need not comply with Section 1.02)
(provided, however, that one of the signatories of which shall be the Company's
principal executive officer, principal financial officer or principal accounting
officer) stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year
and of performance under this Indenture and under the terms of the
Securities has been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations and complied with all
conditions and covenants under this Indenture and under the terms of
the Securities throughout such year, or, if there has been a default in
the fulfillment of any such obligation, condition or covenant
specifying each such default known to him and the nature and status
thereof, and (b) no event has occurred and is occurring which is, or
after notice or lapse of time or both would become, a Default, or if
such an event has occurred and is continuing, specifying such event
known to him and the nature and status thereof.
For purposes of this Section, compliance or default shall be
determined without regard to any period of grace or requirement of notice
provided for herein.
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SECTION 5.06. Maintenance of Corporate Existence, Rights and
Franchises. So long as any of the Securities shall be Outstanding, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises to carry on its
business; provided, however, that nothing in this Section 5.06 shall (i) require
the Company to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders, (ii) prevent any
consolidation or merger of the Company, or any conveyance or transfer of its
property and assets substantially as an entirety to any person, permitted by
Article Ten or (iii) prevent the liquidation or dissolution of the Company after
any conveyance or transfer of its property and assets substantially as an
entirety to any person permitted by Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
SECTION 6.01. Company To Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, as the case may be, and (ii) 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 requested to be furnished; provided,
however, that if and so long as the Trustee is the Security Registrar for
Securities of a series, no such list need be furnished with respect to such
series of Securities.
SECTION 6.02. Preservation of Information; Communications to
Holders. (i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
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(ii) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either:
(a) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 6.02(i), and as to
the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or all Holders of
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
6.02(i), a copy 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 mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the 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 of such series or all Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the 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 such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee
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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.
(iii) Every Holder of Securities, 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 Section 6.02(ii), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section
6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May
15 of each year commencing with the year 1999, the Trustee shall mail to each
Holder reports concerning the Trustee and its action under the Indenture as may
be required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by
mail to all Holders of Securities, as their names and addresses appear in the
Security Register and except in the cases of reports under Section 313(b)(2) of
the Trust Indenture Act, to each Holder of a Security of any series whose name
and address appear in the information preserved at the time by the Trustee in
accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, and also with the Commission. The Company
will notify the Trustee when any Securities are listed on any securities
exchange.
SECTION 6.04. Reports by Company. The Company will:
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it will file with
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the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner
and to the extent provided in Section 6.03(ii), within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (i) and (ii) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default. "Event of Default", with
respect to any series of Securities, wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of 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 or Board Resolution under which such series of Securities
is issued or in the form of Security for such series:
(i) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company
in an involuntary case under the Federal Bankruptcy Code, adjudging the
Company a bankrupt, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under the Federal Bankruptcy Code or any other
applicable Federal or State bankruptcy,
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insolvency or similar law, or appointing a receiver, liquidator,
custodian, assignee, trustee, sequestrator (or other similar official)
of the Company, or of substantially all of its properties, or ordering
the winding up or liquidation of its affairs under any such law, and
the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(ii) the institution by the Company of proceedings to be
adjudicated a bankrupt, or the consent of the Company to the
institution of bankruptcy proceedings against it, or the filing by the
Company of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable
Federal or State bankruptcy, insolvency or similar law, or the consent
by the Company to the filing of any such petition or to the appointment
of a receiver, liquidator, custodian, assignee, trustee, sequestrator
(or other similar official) of the Company or of substantially all of
its properties under any such law; or
(iii) any other Event of Default provided with respect to
Securities of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to any series of Securities for
which there are Securities Outstanding occurs and is continuing, then, and in
every such case, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series may declare the principal of
all the Securities of such series (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) to be immediately due and payable, by
a notice in writing to the Company (and to the Trustee if given by Holders),
and, upon any such declaration, the same shall become immediately due and
payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of such series, by written notice to the
Company and
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the Trustee, may rescind and annul such declaration and its consequences, and
any Event of Default giving rise to such declaration shall not be deemed to have
occurred, if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue installments of interest on all
Securities of such series;
(b) the principal of and premium, if any, on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor by the terms of the
Securities of such series;
(c) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the
rate or rates prescribed therefor by the terms of the
Securities of such series; and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, the Security
Registrar, any Paying Agent, and their agents and counsel and
all other amounts due the Trustee under Section 8.07; and
(ii) all other Defaults with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 7.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(i) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or
premium, if any, on any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security, the whole amount then
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due and payable on any such Security for principal, premium, if any, and
interest, with interest upon the overdue principal and premium, if any, and (to
the extent that payment of such interest shall be lawful) upon overdue
installments of interest, at the rate or rates prescribed therefor by the terms
of any such Security; and, in addition thereto, such further amount as shall be
sufficient to cover the reasonable costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 8.07.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company, wherever situated.
If a Default with respect to any series of Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or the property of the Company or its
creditors, the Trustee (irrespective of whether the principal of any Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and
any
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other amounts due the Trustee under Section 8.07) and of the Holders
allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security in any
such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or under the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 8.07, be for the
ratable benefit of the Holders of the Securities of such series in respect of
which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money
collected by the Trustee with respect to a series of Securities pursuant to this
Article shall be applied in the following order, at the date or dates fixed by
the Trustee, and, in case of the distribution of such money on account of
principal, premium, if any, or interest, upon presentation of the
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Securities of such series, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 8.07;
SECOND: Subject to Article Fourteen, to the payment of the
amounts then due and unpaid upon the Securities of such series for
principal, premium, if any, and interest, in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on Securities of such series for principal, premium, if any,
and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Trustee of a continuing Default with respect to Securities of such
series;
(ii) the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have made
written request to the Trustee to institute proceedings in respect of
such Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this
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Indenture to affect, disturb or prejudice the rights of any other Holders of
Securities of such series or to obtain or to seek to obtain priority or
preference over any other such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any
series of Securities under this Indenture:
(a) an Event of Default with respect to such series specified
in Section 7.01; or
(b) default in the payment of the principal of or premium, if
any, on any Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security
of such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(d) failure on the part of the Company duly to observe or
perform any of the other covenants or agreements on its part in the
Securities of such series or in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series) and continuance of such failure for
a period of 90 days after the date on which written notice of such
failure, requiring the Company to remedy the same and stating that such
notice is a "Notice of Default" hereunder, shall have been given by
registered mail to the Company by the Trustee, or to the Company and
the Trustee by the holders of at least 25% in aggregate principal
amount of the Securities of such series at the time Outstanding; or
(e) any other Default provided with respect to Securities of
that Series.
SECTION 7.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment on the Redemption Date or Repayment Date) and to institute suit for
the enforcement of such
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payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
lost, destroyed or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security to exercise any right
or remedy accruing upon any Default shall impair any such right or remedy or
constitute a waiver of any such Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series; provided that
(i) such direction shall not be in conflict with any rule of
law or with this Indenture,
(ii) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction,
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(iii) subject to the provisions of Section 8.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability, and
(iv) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder and its consequences, except a default not theretofore cured
(i) in the payment of the principal of, premium, if any, or
interest on any Security of such series, or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of the Securities of such series under this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder of
Securities for the enforcement of the payment of the principal of, premium, if
any, or interest on any Security on
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or after the respective Stated Maturities expressed in such Security (or, in the
case of redemption or repayment, on or after the Redemption Date or Repayment
Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities. (i) Except
during the continuance of a Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to Securities of such series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee with
respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificate
or opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform as to form to
the requirements of the Indenture.
(ii) In case a Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in their exercise, as a
prudent person would
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exercise or use under the circumstances in the conduct of his or her own
affairs.
(iii) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(a) this Subsection shall not be construed to limit the effect
of Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to Securities of
such series; and
(d) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(iv) Whether or not herein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 8.02. Notice of Default. Within 90 days after the
occurrence of any Default hereunder with respect to Securities of any series,
the Trustee shall transmit by mail to all Holders of Securities of such series
entitled to receive reports pursuant to Section 6.03(ii) notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of, premium, if any, or interest on any Security of such
series, or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee
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or a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of Securities of such series. For the purpose of this Section, the
term "default", with respect to Securities of any series, means any event which
is, or after notice or lapse of time, or both, would become, a Default or an
Event of Default with respect to Securities of such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise
provided in Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(iii) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(iv) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, security or other paper or document, but the
Trustee, in its
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discretion, may make further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or
by agent or attorney and, if so requested to do so by any of the
Holders, at the sole cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(viii) in the event that the Trustee is also acting as Paying
Agent, Authenticating Agent or Security Registrar hereunder, the rights
and protections afforded to the Trustee pursuant to this Article Eight
shall also be afforded to such Paying Agent, Authenticating Agent or
Security Registrar;
(ix) the Trustee shall not be charged with knowledge of any
Default unless either (1) a Responsible Officer of the Trustee shall
have actual knowledge of such Default or (2) written notice of such
Default shall have been given to the Trustee by the Company or any
Holder; and
(x) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
SECTION 8.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 8.08 and 8.13, may
otherwise deal with the Company with the same rights it would have if it were
not
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Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 8.07. Compensation and Reimbursement. The Company
agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of, premium, if any, or
interest on particular Securities.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in 7.01, the expenses (including
the reasonable fees and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
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The obligations of the Company set forth in this Section 8.07
and any lien arising hereunder shall survive the resignation or removal of any
Trustee, the discharge of the Company's obligations pursuant to Article Eleven
of this Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To the
extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to
have a conflicting interest with respect to the indentures relating to the
Securities of any series by virtue of being Trustee with respect to the
Securities of any particular series of Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee with respect to each series of Securities
hereunder which shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $5,000,000, subject to supervision or
examination by Federal or State authority; provided, however, that, if Section
310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and
doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of
Successor. (i) No resignation or removal of the Trustee and no
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appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 8.11.
(ii) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the resigning Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with
respect to any series of Securities after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 8.09
with respect to any series of Securities and shall fail to resign after
written request therefor by the Company or by any Holder of Securities
of such series, or
(c) the Trustee shall become incapable of acting with respect
to any series of Securities or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a vacancy
shall occur in the office of Trustee with respect to any series of Securities
for any cause, the Company, by a Board
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Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 8.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to such series of Securities shall be appointed
by the Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee with
respect to such series, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect to
such series and to that extent supersede the successor Trustee appointed by the
Company with respect to such series. If no successor Trustee with respect to
such series shall have been so appointed by the Company or the Holders of
Securities of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series and the
address of its Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In
the case of the appointment hereunder of a successor Trustee with respect to any
series of Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective with respect to all or any series as to
which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to
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such successor Trustee all the rights, powers and trusts of such retiring
Trustee with respect to all or any such series; and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to all or any such series, subject
nevertheless to its lien, if any, provided for in Section 8.07.
(ii) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (a) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (b) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (c) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates, subject nevertheless to its lien, if any,
provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all
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such rights, powers and trusts referred to in paragraph (i) or (ii) of this
Section, as the case may be.
(iv) No successor Trustee with respect to a series of
Securities shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible with respect to such
series under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against
Company. 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 Section 311 of the Trust Indenture Act regarding the collection of
any claims as a creditor against the Company (or any such other obligor). A
Trustee that has resigned or been removed shall be subject to and comply with
said Section 311 to the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The
Trustee may appoint an Authenticating Agent or Agents, which may include any
Affiliate of the Company, with respect to one or more series of Securities. Such
Authenticating Agent or Agents at the option of the Trustee shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued
upon original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Whenever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication or the delivery of
Securities to the Trustee for authentication, such reference shall be deemed to
include
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authentication and delivery on behalf of the Trustee by an Authenticating Agent,
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent and delivery of Securities to the Authenticating Agent on
behalf of the Trustee. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authority. Notwithstanding the
foregoing, an Authenticating Agent located outside the United States may be
appointed by the Trustee if previously approved in writing by the Company and if
such Authenticating Agent meets the minimum capitalization requirements of this
Section 8.14. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent; provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor
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Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ], as Trustee,
by
-----------------------------
As Authenticating Agent
by
-----------------------------
Authorized Officer
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holder of any Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or
Person to the Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment
by another corporation as a successor Trustee hereunder with respect to
one or more series of Securities 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 Section 8.11; or
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(iii) to add to the covenants of the Company, for the benefit
of the Holders of Securities of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series), or to surrender any right or
power herein conferred upon the Company; or
(iv) 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 the Indenture; provided that such action shall
not adversely affect the interests of the Holders of Securities of any
series in any material respect, or
(v) to add any additional Defaults or Events of Default with
respect to all or any series of the Securities (and, if such Default or
Event of Default is applicable to less than all series of Securities,
specifying the series to which such Default or Event of Default is
applicable); or
(vi) to add to, change or eliminate any of the provisions of
this Indenture; provided that any such addition, change or elimination
(a) shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is adversely affected by such change in or elimination
of such provision or (b) shall not apply to any Securities Outstanding;
or
(vii) to establish the form or terms of Securities of any
series as permitted by Sections 2.02 and 3.01; or
(viii) to add to or change any provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities convertible into other securities; or
(ix) to evidence any changes to Section 8.09 as permitted by
the terms thereof; or
(x) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; provided such action shall not
adversely affect the interest of Holders of Securities of any series in
any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a
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majority in aggregate principal amount of the Outstanding Securities of all
series affected by such supplemental indenture or indentures (acting as one
class), by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of each such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(i) change the Maturity of the principal of, or the Stated
Maturity of any installment of interest (or premium, if any) on, any
Security, or reduce the principal amount thereof or any premium thereon
or the rate of interest thereon, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 7.02, or change the method of calculating interest thereon or
the coin or currency in which any Security (or premium, if any,
thereon) or the interest thereon is payable, or reduce the minimum rate
of interest thereon, 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 or repayment, on or after the Redemption
Date or Repayment Date);
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture or the consent of whose
Holders is required for any waiver of certain defaults hereunder and
their consequences provided for in this Indenture or reduce the
requirements of Section 16.04 for a quorum;
(iii) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 5.02; or
(iv) modify any of the provisions of this Section or Section
7.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of
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the Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, liabilities, duties or immunities under this
Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 9.07. Subordination Unimpaired. No supplemental
indenture executed pursuant to this Article shall directly or indirectly modify
the provisions of Article Fourteen in any manner which might alter the
subordination of the Securities.
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ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, premium, if
any, and interest on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(ii) immediately after giving effect to such transaction, no
Default, and no event which, after notice or lapse of time, or both,
would become a Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 10.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
10.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein. In the event of any such conveyance or
transfer, the Company as the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and may be dissolved, wound up
and liquidated at any time thereafter.
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ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for and rights to receive payments thereon), and the Trustee, on receipt of a
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(i) either
(a) all Securities theretofore authenticated and
delivered (other than (1) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06, and (2) 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
(b) all such Securities not theretofore delivered to
the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Maturity within one year, or
(3) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (b) (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee, as trust funds in
trust for the purpose, an amount (said amount to be immediately due and
payable to the Holders) sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal, 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 Maturity or Redemption Date, as the
case may be;
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(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(iii) 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 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03, shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
SECTION 11.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 5.03, all money deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and 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, premium, if any, and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying
Agent is unable to apply any money in accordance with Section 11.02 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
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of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of the Securities.
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of 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 sinking fund payment may be subject to
reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
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SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (ii) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee and the Security Registrar
an Officers' Certificate specifying (i) the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, (ii) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 13.02, and (iii) that none of such
Securities has theretofore been so credited and stating the basis for such
credit, and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each sinking fund payment date the Security
Registrar shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 4.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 4.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 4.06 and 4.07 and shall be subject to Section 4.08.
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement To Subordinate. The Company, for
itself, its successors and assigns, covenants and agrees, and each Holder of a
Security by his acceptance thereof likewise covenants and agrees, that the
payment of the principal and premium, if any, and interest on each and all of
the Securities is hereby expressly subordinated, to the extent and in the manner
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hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness and, subject to the provisions of Section 14.09, General
Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities. Upon any distribution of assets of
the Company upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise (subject
to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
Holders thereof (and, upon the General Obligations and the creditors in respect
thereof with respect to the Securities and the Holders thereof) by a lawful plan
of reorganization under applicable bankruptcy law);
(i) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full in accordance with the terms of
such Senior Indebtedness of the principal thereof, premium, if any, and
the interest due thereon (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of
the Company under any applicable bankruptcy, insolvency, or similar law
now or hereafter in effect) before the Holders of the Securities are
entitled to receive any payment upon the principal of or premium, if
any, or interest on indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article Fourteen, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, in
accordance with the priorities then existing among holders of Senior
Indebtedness for payment of the aggregate amounts remaining unpaid on
account of the principal of and premium, if any, and interest
(including interest accruing subsequent to the
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commencement of any proceeding for the bankruptcy or reorganization of
the Company under any applicable bankruptcy, insolvency or similar law
now or hereafter in effect) on the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Indebtedness; it being understood that if the Holders of Securities
shall fail to file a proper claim in the form required by any
proceeding referred to in this subparagraph (ii) prior to 30 days
before the expiration of the time to file such claim or claims, then
the holders of Senior Indebtedness are hereby authorized to file an
appropriate claim or claims for and on behalf of the Holders of
Securities in the form required in any such proceeding (as are the
creditors in respect of General Obligations in the event Section 14.09
is applicable); and
(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinate to the payment of the Securities, shall be received by the
Trustee or Holders of the Securities before all Senior Indebtedness is
paid in full, such payment or distribution shall be held in trust for
the benefit of and shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions hereof of cash,
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property or securities otherwise distributable to the Senior Indebtedness shall,
as between the Company, its creditors, other than the holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment by the
Company to or on account of the Securities. It is understood that the provisions
of this Article Fourteen are and are intended solely for the purpose of defining
the relative rights of the Holders of the Securities, on the one hand, and the
holders of Senior Indebtedness (and, in the case of Section 14.09, the Holders
of the Securities, on the one hand, and creditors in respect of General
Obligations) on the other hand. Nothing contained in this Article Fourteen or
elsewhere in this Indenture or in the Securities is intended to or shall impair,
as between the Company, its creditors, other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the Company,
which is unconditional and absolute (and which, subject to the rights under this
Article Fourteen of the holders of the Senior Indebtedness and the rights under
Section 14.09 of creditors in respect of General Obligations, is intended to
rank equally with all other general obligations of the Company), to pay to the
Holders of the Securities the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms or to affect the relative rights of the Holders of the Securities
and creditors of the Company, other than the holders of the Senior Indebtedness
and creditors in respect of General Obligations, nor shall anything herein or in
the Securities prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon Default under this
Indenture, subject to the rights, if any, under this Article Fourteen of the
holders of Senior Indebtedness and under Section 14.09 of creditors in respect
of General Obligations in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any payment or distribution
of assets of the Company referred to in this Article Fourteen, the Trustee,
subject to the provisions of Section 8.01, and the Holders of the Securities
shall be entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending or upon a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders of the Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company and the creditors in respect
of General Obligations, 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 liquidating trustee, agent or
other person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative
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on behalf of such holder) or a creditor in respect of General Obligations as
evidence that such Person is a holder of Senior Indebtedness (or is such a
trustee or representative) or a creditor in respect of General Obligations, as
the case may be. 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 or a creditor in respect of General Obligations,
to participate in any payment or distribution pursuant to this Section or
Section 14.09, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
or General Obligations held by such Person, as to the extent to which such
Person is entitled to participation in such payment or distribution, and as to
other facts pertinent to the rights of such Person under this Section or Section
14.09, and if such evidence is not furnished, the Trustee may defer any payment
to such Person pending judicial determination as to the right of such Person to
receive such payment.
With respect to the holders of Senior Indebtedness or
creditors in respect of General Obligations, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically set
forth in this Article, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness or creditors in respect of General
Obligations shall be read into this Indenture against the Trustee. The Trustee,
however, shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness or creditors in respect of General Obligations, and shall not be
liable to any such holders or creditors if it shall mistakenly pay over or
distribute to or on behalf of Holders of Securities or the Company moneys or
assets to which any holders of Senior Indebtedness or creditors in respect of
General Obligations shall be entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event
of Default under Senior Indebtedness. In the event and during the continuation
of any default in the payment of principal of, or premium, if any, or interest
on, any Senior Indebtedness beyond any applicable period of grace, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing, or would occur as a result of the payment
referred to hereinafter, permitting the holders of such Senior Indebtedness (or
a trustee on behalf of the holders thereof) to accelerate the maturity thereof,
then, unless and until such default or event of default shall have been cured or
waived or shall have ceased to exist, no payment of principal of, or premium or
interest on the Securities, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Securities, shall be made by the
Company.
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SECTION 14.04. Payments on Securities Permitted. Nothing
contained in this Indenture or in any of the Securities shall (i) impair, as
between the Company and Holders of Securities, the obligation of the Company to
make, or prevent the Company from making, at any time except as provided in
Sections 14.02, 14.03, 14.08 and 14.09, payments of principal of or premium, if
any, or interest (including interest accruing subsequent to the commencement of
any proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect) on
the Securities, as and when the same shall become due and payable in accordance
with the terms of the Securities, (ii) affect the relative rights of the Holders
of the Securities and creditors of the Company other than the holders of the
Senior Indebtedness of the Company and the creditors in respect of General
Obligations, (iii) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
thereunder, subject to the rights, if any, under Article Fourteen of the holders
of Senior Indebtedness and the creditors in respect of General Obligations in
respect of cash, property or securities of the Company received upon the
exercise of such remedy, or (iv) prevent the application by the Trustee or any
Paying Agent of any moneys deposited with it hereunder to the payment of or on
account of the principal of or premium, if any, or interest on the Securities or
prevent the receipt by the Trustee or any Paying Agent of such moneys, if, prior
to the second Business Day prior to such deposit, the Trustee or such Paying
Agent did not have written notice of any event prohibiting the making of such
deposit by the Company.
SECTION 14.05. Authorization of Holders to Trustee To Effect
Subordination. Each Holder of a Security 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 provided in this Article Fourteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, but
subject to Section 14.04 hereof, neither the Trustee nor any Paying Agent shall
be charged with knowledge of the existence of any Senior Indebtedness or General
Obligations or of any event which would prohibit the making of any payment of
moneys to or by the Trustee or such Paying Agent, unless and until the Trustee
or such Paying Agent shall have received written notice thereof from the Company
or from the holder of any Senior Indebtedness or from the representative of any
such holder or from any creditor in respect of General Obligations.
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SECTION 14.07. Right of Trustee To Hold Senior Indebtedness or
General Obligations. The Trustee shall be entitled to all of the rights set
forth in this Article in respect of any Senior Indebtedness or General
Obligation at any time held by it in its individual capacity to the same extent
as any other holder of such Senior Indebtedness or creditor in respect of such
General Obligation, and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder or creditor.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 8.07.
SECTION 14.08. Article Fourteen Not To Prevent Defaults or
Events of Default. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article shall not be construed as preventing the
occurrence of a Default or an Event of Default.
SECTION 14.09. Payment of Proceeds in Certain Cases.
(i) Upon the occurrence of any of the events specified in the
first paragraph of Section 14.02, the provisions of that Section shall
be given effect on a pro rata basis to determine the amount of cash,
property or securities which may be payable or deliverable as between
the holders of Senior Indebtedness and the Holders of the Securities.
(ii) If, after giving effect to the provisions of Section
14.02, any amount of cash, property or securities shall be available
for payment or distribution in respect of the Securities ("Excess
Proceeds"), and any creditors in respect of General Obligations shall
not have received payment in full of all amounts due or to become due
on or in respect of such General Obligations (and provision shall not
have been made for such payment in money or money's worth), then such
Excess Proceeds shall first be applied (ratably with any amount of
cash, property or securities available for payment or distribution in
respect of any other indebtedness of the Company that by its express
terms provides for the payment over of amounts corresponding to Excess
Proceeds to creditors in respect of General Obligations) to pay or
provide for the payment of the General Obligations remaining unpaid, to
the extent necessary to pay all General Obligations in full, after
giving effect to any concurrent payment or distribution to or for
creditors in respect of General Obligations. Any Excess Proceeds
remaining after payment (or provision for payment) in full of all
General Obligations shall be available for payment or distribution in
respect of the Securities.
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(iii) In the event that, notwithstanding the foregoing
provisions of subsection (ii) of this Section, the Trustee or Holder of
any Security shall, in the circumstances contemplated by such
subsection, have received any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, before all General Obligations are paid in full or payment
thereof duly provided for, and if such fact shall, at or prior to the
time of such payment or distribution have been made known to the
Trustee or, as the case may be, such Holder, then and in such event,
subject to any obligation that the Trustee or such Holder may have
pursuant to Section 14.02, such payment or distribution shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for payment in
accordance with subsection (ii).
(iv) Subject to the payment in full of all General
Obligations, the Holders of the Securities shall be subrogated (equally
and ratably with the holders of all indebtedness of the Company that by
its express terms provides for the payment over of amounts
corresponding to Excess Proceeds to creditors in respect of General
Obligations and is entitled to like rights of subrogation) to the
rights of the creditors in respect of General Obligations to receive
payments or distributions of cash, property or securities applicable to
the General Obligations until the principal of and interest on the
Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to creditors in respect of General
Obligations of any cash, property or securities to which Holders of the
Securities or the Trustee would be entitled except for the provisions
of this Section, and no payments over pursuant to the provisions of
this Section to creditors in respect of General Obligations by Holders
of Securities or the Trustee, shall, as among the Company, its
creditors (other than creditors in respect of General Obligations) and
the Holders of Securities be deemed to be a payment or distribution by
the Company to or on account of the Securities.
(v) The provisions of subsections (ii), (iii) and (iv) of this
Section are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and
the creditors in respect of General Obligations, on the other hand,
after giving effect to the rights of the holders of Senior
Indebtedness, as provided in this Article. Nothing contained in
subsections (ii), (iii) and (iv) of this Section is intended to or
shall affect the relative rights against the Company
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of the Holders of the Securities and (a) the holders of Senior
Indebtedness, (b) other creditors of the Company other than creditors
in respect of General Obligations.
ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article. Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Securities of such series) in
accordance with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is
subject to repayment in whole or in part at the option of the Holder thereof on
a Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option; Notice. Each Holder
desiring to exercise such Holder's option for repayment shall, as conditions to
such repayment, surrender the Security to be repaid in whole or in part together
with written notice of the exercise of such option at any office or agency of
the Company in a Place of Payment, not less than 30 nor more than 45 days prior
to the Repayment Date. Such notice, which shall be irrevocable, shall specify
the principal amount of such Security to be repaid, which shall be equal to the
minimum authorized denomination for such Security or an integral multiple
thereof, and shall identify the Security to be repaid and, in the case of a
partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Security so surrendered
a new Security or Securities of the same series and tenor of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Security so surrendered which is
not to be repaid.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the repayment of Securities shall
relate, in the case of any Security repaid or to be repaid only in part, to the
portion of the principal of such Security which has been or is to be repaid.
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SECTION 15.04. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders thereof who give notice and surrender their
Securities in accordance with Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 15.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, except to the extent provided above, shall be void, unless
the Company shall default in the payment of such price, in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate prescribed therefor by such Securities from time to time until payment
in full of such principal amount.
ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
by this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 16.01, to be held at such time and at such
place in the City of New York, New York or Wilmington, Delaware, as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.06, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
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(ii) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any such series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 16.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be, may
determine the time and the place in the City of New York, New York or
Wilmington, Delaware, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (i) of this Section.
SECTION 16.03. Persons Entitled To Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum, Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that, if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given only by the Holders of a greater percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such greater
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence of
a quorum in any other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 16.02(i), except that
such
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notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to Section 9.02, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities of
the series; provided, however, that, except as limited by the provisos to
Section 9.02, any resolution with respect to any consent or waiver which this
Indenture expressly provides may be given only by the Holders of a greater
percentage in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid only by the affirmative vote of the Holders of
such greater percentage in principal amount of the Outstanding Securities of
that series; and provided further that, except as limited by the provisos to
Section 9.02, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other Act which this Indenture expressly
provides may be made, given or taken only by the Holders of a specified
percentage, which is less than a majority in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of the
Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series, whether or not
present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.04 and the appointment of any
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proxy shall be proved in the manner specified in Section 1.04. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 1.04 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 16.02(ii), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; 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 chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 16.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots, on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting, and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
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meeting and showing that said notice was given as provided in Section 16.02 and,
if applicable, Section 16.04. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
[ ] hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
80
<PAGE> 87
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
WILMINGTON TRUST CORPORATION
By _____________________________
Attest:
________________________ [CORPORATE SEAL]
Trustee,
By
________________________________
Attest:
________________________ [CORPORATE SEAL]
81
<PAGE> 88
STATE OF ____________________ )
) ss.:
COUNTY OF [ ] )
On this day of ________, 1998, before me personally
came to me known, , who, being by me duly sworn, did depose
and say that he resides at ; that he is __________
of WILMINGTON TRUST CORPORATION, one of the corporations described in and which
executed the foregoing instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
________________________________________
Notary Public
[Notarial Seal]
82
<PAGE> 89
STATE OF [ ], )
) ss.:
COUNTY OF [ ], )
On this day of ________, 1998 before me personally
appeared ,
to me known, who, being by me duly sworn, did depose and say that he resides at
; that he is a of [
], one of the parties described in and which executed the foregoing
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
________________________________________
Notary Public
[Notarial Seal]
83
<PAGE> 90
EXHIBIT A
FORM OF SUBORDINATED NOTE
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF WILMINGTON TRUST CORPORATION AND ARE NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY
OTHER GOVERNMENTAL AGENCY.
WILMINGTON TRUST CORPORATION
_____% SUBORDINATED NOTE DUE 2008
REGISTERED CUSIP __________
No. _____
WILMINGTON TRUST CORPORATION, a Delaware corporation (herein called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
[CEDE & CO.]
or registered assigns, the principal sum of ____________________ DOLLARS
($___________) on __________, 2008 (the "Maturity Date"), and to pay interest on
said principal sum semiannually on __________ 1 and __________ 1 in each year
(individually referred to as an "Interest Payment Date" and collectively as the
"Interest Payment Dates"), commencing __________ 1, 1998 at the rate of _____%
per annum, computed on the basis of a 360-day year consisting of twelve 30-day
months, from __________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, until the principal hereof is paid
or made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be the __________ 15 or __________ 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date, provided that interest payable on the Maturity Date shall
be payable to the Person to whom the principal hereof is payable. In the event
any Interest Payment Date is not a Business Day, interest will be paid on the
next succeeding Business Day. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Note (or one
or more Predecessor Notes) is registered at
<PAGE> 91
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange upon which the Notes of the series shown above may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in such Indenture. Payment of the principal of and interest on
this Note due on the Maturity Date will be made in immediately available funds
upon presentation of the Note. For the purposes of this Note, "Business Day"
means any day, other than a Saturday or Sunday, on which banking institutions in
the City of Wilmington, Delaware are open for business. Payment of the principal
of and interest on this Note will be made at the office or agency of the Company
maintained for that purpose in ____________________, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that, at the option of
the Company, payment of interest (other than interest payable on the Maturity
Date) may be paid by check mailed to the address of the Person entitled thereto
as such address shall appear in the Note Register at the close of business on
the Regular Record Date.
This Note is one of a duly authorized issue of subordinated notes of the
series designated above of the Company (herein called the "Notes"), issued and
to be issued under an indenture dated as of __________, 1998 (the "Indenture"),
between the Company and _______________, as trustee (the "Trustee") to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered. This
Note is one of the series designated above, limited (except as provided in the
Indenture) in aggregate principal amount to $X00,000,000.
The Notes of this series are not redeemable prior to maturity and will not
be subject to any sinking fund.
The indebtedness of the Company evidenced by the Notes of this series,
including the principal thereof and interest thereon, is, to the extent and in
the manner set forth in the Indenture, subordinate and junior in right of
payment to its obligations to holders of Senior Indebtedness (as defined in the
Indenture) and creditors in respect of General Obligations (as defined in the
Indenture), and each Holder of Notes of this series, by the acceptance thereof,
agrees to and shall be bound by such provisions of the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture. There is no right of
acceleration of the payment of principal of the Notes upon a default in the
payment of interest on the Notes or in the performance of any covenant of the
Company in the Indenture or the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series under the
Indenture to be affected at any time by the Company with the consent of the
Holders of a majority in principal amount of the Notes at the time Outstanding
of each series to be affected. The Indenture also contains provisions permitting
the Holders of a majority in principal amount of the Notes of each series at the
time Outstanding, on behalf of the Holders of all Notes of such series, to waive
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
2
<PAGE> 92
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company which is
absolute and unconditional to pay the principal of and interest on this Note at
the times, places and rate, and in the coin or currency herein and in the
Indenture prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Securities Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and interest
on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of the same series of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
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
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note shall be construed in accordance with and governed by the laws
of the State of New York.
All terms not defined herein shall have the respective meanings ascribed
to them in the Indenture referred to herein.
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under such Indenture, this Note shall not be
entitled to any benefits under such Indenture or be valid or obligatory for any
purpose.
3
<PAGE> 93
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
under its corporate seal.
WILMINGTON TRUST CORPORATION
Dated: __________, 1998
By
Title:
ATTEST:
By
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein issued under the
within-mentioned Indenture.
_______________
as Trustee
By
Authorized Officer
4
<PAGE> 94
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT --as tenants by the entireties
JT ENT -- as joint tenants and not as tenants in common
UNIF GIFT MIN ACT..........Custodian...............
(Cust) (Minor)
under Uniform Gift to Minors Act
..................................
(State)
Additional abbreviations may be used though not in the above list.
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
THERE IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
Name and address of assignee, including zip code, must be printed or typewritten
________________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises.
Dated:________________________ ___________________________________
___________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and must be guaranteed by a commercial
bank or trust company having its principal office or a correspondent in The City
of New York or by a member of the New York Stock Exchange.
5
<PAGE> 1
EXHIBIT 4.5
WILMINGTON TRUST CORPORATION
OFFICERS' CERTIFICATE
__% SUBORDINATED NOTES DUE _________, 2008
_________, 1998
The undersigned Authorized Officers hereby certify that,
pursuant to resolutions duly adopted by the Board of Directors of the
Corporation on ____________________ and ____________________ (collectively, the
"Borrowing Resolutions"), such Authorized Officers are authorized and empowered
on behalf of the Corporation to arrange or effect senior or subordinated
borrowings in a specified amount. Pursuant to such authority, the Authorized
Officers hereby take the following actions:
RESOLVED, that, pursuant to that certain Indenture dated as of
__________, 1998 between the Corporation and Norwest Bank Minnesota, N.A., as
Trustee, relating to subordinated debt securities (the "Indenture"), the
Authorized Officers hereby authorize and approve the issuance and sale of a
series of Securities (the "Notes"), as follows:
(1) The title of the Securities of this Series (the
"Notes") is: "__% Subordinated Notes due
______________, 2008."
(2) The aggregate principal amount of the Notes which may
be authenticated and delivered under the Indenture
(except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or
in lieu of, other Notes pursuant to Article Three or
Section 4.07, 9.06 or 15.03 of the Indenture) shall
be limited to One Hundred Twenty Five Million Dollars
($125,000,000.00).
(3) The Notes shall be issued in fully registered form,
without coupons, and none of the Notes shall be
issuable in bearer form. The Notes shall be issued in
the form of one or more Global Securities deposited
with, or on behalf of, The Depository Trust Company
("DTC") or another successor depositary institution
named by the Corporation and, if deposited with or on
behalf of DTC, will be registered in the name of
DTC's nominee, Cede & Co. ("Cede").
(4) The Notes shall be denominated in, and the principal
of and interest on the Notes shall be payable in,
United States dollars.
<PAGE> 2
(5) The principal of the Notes shall be payable on
___________, 2008.
(6) The Notes shall bear interest at the rate of __% per
annum from ___________, 1998 until the principal
thereof is paid or made available for payment. Such
interest shall be payable semiannually in arrears on
_____________ and ____________ of each year,
commencing _______________, 1998 to the persons in
whose names such Notes are registered at the close of
business on _____________ or _______________ (whether
or not a Business Day) next preceding such
_______________ or _______________, respectively; and
such interest shall be calculated on the basis of a
360-day year of twelve 30-day months.
(7) The Notes shall not be subject to redemption at the
option of the Corporation.
(8) The Notes shall not be subject to redemption at the
option of a Holder thereof or pursuant to any sinking
fund or otherwise.
(9) The Notes shall be substantially in the form attached
hereto as Exhibit A, the terms of which are
incorporated by reference herein and authorized
hereby.
(10) The Notes shall be subordinated to the rights of
holders of Senior Indebtedness and General
Obligations as and to the extent provided in the
Indenture.
(11) For so long as the Note is held by the Depository or
its nominee, payment of principal and interest shall
be made by wire transfer to an account designated by
the Depository or its nominee. The Place of Payment
for Notes not held by the Depository or its nominee
and the location for surrender of Notes for transfer
or exchange and for the giving of notices shall be
the Corporation's offices at Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890
and such other Place of Payment as may be designated
by Authorized Officers from time to time.
(12) Norwest Bank Minnesota, N.A. is hereby appointed and
designated to act as Trustee and Security Registrar
under the Indenture.
RESOLVED, that the Authorized Officers hereby adopt, ratify
and approve the execution and delivery of an Underwriting Agreement (the
"Underwriting Agreement")
2
<PAGE> 3
among the Corporation and Salomon Smith Barney; Keefe Bruyette and Woods; and/or
any other underwriters named therein (the "Underwriters") in substantially the
form filed as Exhibit 1.1 to the Corporation's Registration Statement on Form
S-3 (File No. __________) (the "Registration Statement"), with such changes
therein, additions thereto and deletions therefrom as the officers executing the
same may approve, and hereby adopts and approves the performance by the
Corporation of the Underwriting Agreement.
RESOLVED, that the Corporation is hereby authorized and
directed to issue and sell the Notes to the Underwriters in accordance with the
Indenture, this Certificate and the Underwriting Agreement and that the price at
which the Notes shall be sold by the Corporation to the Underwriters shall be
__% of the principal amount thereof, plus accrued interest, if any, thereon from
_____________, 1998 to the date of delivery thereof.
RESOLVED, that the Authorized Officers of the Corporation and
the secretary or any assistant be, and each of them hereby is, authorized to
take, or cause to be taken, any and all action which each such Authorized
Officer may deem necessary or desirable to carry out the purpose and intent of
the foregoing resolutions or in order to perform, or cause to be performed, the
obligations of the Corporation under the Indenture, the Notes, the Underwriting
Agreement and, in connection therewith, to make, execute and deliver or cause to
be made, executed and delivered, all agreements, undertakings, documents,
certificates, orders, requests or instruments in the name and on behalf of the
Corporation as each such Authorized Officer may deem necessary or desirable.
RESOLVED, that all actions of the Corporation, its directors,
officers, agents and employees heretofore taken in connection with the aforesaid
matters hereby are ratified, approved and confirmed.
RESOLVED, that the capitalized terms used herein but not
defined in this Certificate shall have the meanings given to them in the
Indenture.
RESOLVED, that this writing constitutes a complete record of
the above actions taken by the undersigned Authorized Officers as of the date
first set forth above.
___________________________________ ______________________________________
Name: Name:
Title: Title:
3
<PAGE> 4
EXHIBIT A
FORM OF SUBORDINATED NOTE
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF WILMINGTON TRUST CORPORATION AND ARE NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY
OTHER GOVERNMENTAL AGENCY.
WILMINGTON TRUST CORPORATION
_____% SUBORDINATED NOTE DUE 2008
REGISTERED CUSIP __________
No. _____
WILMINGTON TRUST CORPORATION, a Delaware corporation (herein called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
[CEDE & CO.]
or registered assigns, the principal sum of ONE HUNDRED TWENTY FIVE
MILLION DOLLARS ($125,000,000) on __________, 2008 (the "Maturity Date"), and to
pay interest on said principal sum semiannually on __________ 1 and __________
1 in each year (individually referred to as an "Interest Payment Date" and
collectively as the "Interest Payment Dates"), commencing __________ 1, 1998 at
the rate of _____% per annum, computed on the basis of a 360-day year
consisting of twelve 30-day months, from __________, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
until the principal hereof is paid or made available for payment. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
__________ 15 or __________ 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date, provided that interest payable
on the Maturity Date shall be payable to the Person to whom the principal
hereof is payable. In the event any Interest Payment Date is not a Business
Day, interest will be paid on the next succeeding Business Day. Any such
interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Note (or one or more Predecessor Notes) is
registered at
<PAGE> 5
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange upon which the Notes of the series shown above may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in such Indenture. Payment of the principal of and interest on
this Note due on the Maturity Date will be made in immediately available funds
upon presentation of the Note. For the purposes of this Note, "Business Day"
means any day, other than a Saturday or Sunday, on which banking institutions in
the city of Wilmington, Delaware are open for business. Payment of the principal
of and interest on this Note will be made at the office or agency of the Company
maintained for that purpose in ____________________, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that, at the option of
the Company, payment of interest (other than interest payable on the Maturity
Date) may be paid by check mailed to the address of the Person entitled thereto
as such address shall appear in the Note Register at the close of business on
the Regular Record Date.
This Note is one of a duly authorized issue of subordinated notes of the
series designated above of the Company (herein called the "Notes"), issued and
to be issued under an indenture dated as of __________, 1998 (the "Indenture"),
between the Company and _______________, as trustee (the "Trustee") to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered. This
Note is one of the series designated above, limited (except as provided in the
Indenture) in aggregate principal amount to $125,000,000.
The Notes of this series are not redeemable prior to maturity and will not
be subject to any sinking fund.
The indebtedness of the Company evidenced by the Notes of this series,
including the principal thereof and interest thereon, is, to the extent and in
the manner set forth in the Indenture, subordinate and junior in right of
payment to its obligations to holders of Senior Indebtedness (as defined in the
Indenture) and creditors in respect of General Obligations (as defined in the
Indenture), and each Holder of Notes of this series, by the acceptance thereof,
agrees to and shall be bound by such provisions of the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture. There is no right of
acceleration of the payment of principal of the Notes upon a default in the
payment of interest on the Notes or in the performance of any covenant of the
Company in the Indenture or the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series under the
Indenture to be affected at any time by the Company with the consent of the
Holders of a majority in principal amount of the Notes at the time Outstanding
of each series to be affected. The Indenture also contains provisions permitting
the Holders of a majority in principal amount of the Notes of each series at the
time Outstanding, on behalf of the Holders of all Notes of such series, to waive
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
2
<PAGE> 6
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company which is
absolute and unconditional to pay the principal of and interest on this Note at
the times, places and rate, and in the coin or currency herein and in the
Indenture prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Securities Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and interest
on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of the same series of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
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
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note shall be construed in accordance with and governed by the laws
of the State of New York.
All terms not defined herein shall have the respective meanings ascribed
to them in the Indenture referred to herein.
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under such Indenture, this Note shall not be
entitled to any benefits under such Indenture or be valid or obligatory for any
purpose.
3
<PAGE> 7
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
under its corporate seal.
WILMINGTON TRUST CORPORATION
Dated: __________, 1998
By
Title:
ATTEST:
By
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein issued under the
within-mentioned Indenture.
__________________
as Trustee
By
Authorized Officer
4
<PAGE> 8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT --as tenants by the entireties
JT ENT -- as joint tenants and not as tenants in common
UNIF GIFT MIN ACT ___________ Custodian ____________
(Cust) (Minor)
under Uniform Gift to Minors Act
________________________________
(State)
Additional abbreviations may be used though not in the above list.
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto PLEASE INSERT SOCIAL SECURITY OR
THERE IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
Name and address of assignee, including zip code, must be printed or typewritten
_______________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________________Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises.
Dated: ______________________ __________________________________
__________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and must be guaranteed by a commercial
bank or trust company having its principal office or a correspondent in The City
of New York or by a member of the New York Stock Exchange.
5
<PAGE> 1
EXHIBIT 5.1
March 31, 1998
Wilmington Trust Corporation
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as your counsel and are rendering this opinion
in connection with the filing of a Registration Statement on Form S-3 (the
"Registration Statement") by Wilmington Trust Corporation (the "Company") with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration by the Company of $225,000,000 aggregate
principal amount of its unsecured debt securities, which may be either senior
(the "Senior Notes") or subordinated (the "Subordinated Notes" and, together
with the Senior Notes, the "Notes") in priority of payment.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Registration Statement and all
exhibits thereto, (ii) the form of indenture pursuant to which the Senior Notes
will be issued and the form of indenture pursuant to which the Subordinated
Notes will be issued (each, an "Indenture") and (iii) the form of Senior and
Subordinated Notes. We have also examined such corporate records and other
agreements, documents and instruments, and such certificates or comparable
documents of public officials and officers and representatives of the Company,
and have made such inquiries of such officers and representatives and have
considered such matters of law as we have deemed appropriate as the basis for
the opinions hereinafter set forth. In delivering this opinion, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as certified, photostatic or
conformed copies, the authenticity of originals of all such latter documents,
and the accuracy and completeness of all records, information and statements
submitted to us by officers and representatives of the Company.
<PAGE> 2
Wilmington Trust Corporation
March 31, 1998
Page 2
Based upon and subject to the foregoing, we are of the opinion
that the Notes have been duly and validly authorized by the Company and,
assuming due authentication by the Trustee for such Notes, when issued,
delivered and paid for, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, and
will be entitled to the benefits of the Indenture under which they are issued,
except that enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, fraudulent conveyance or other
similar laws affecting or relating to enforcement of creditors' rights generally
and (ii) general principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
such enforcement may be sought in a proceeding in equity or at law).
We express no opinion as to the law of any jurisdiction other
than the federal law of the United States and the General Corporation Law of the
State of Delaware. We do not undertake to advise you or anyone else of any
changes in the opinions expressed herein resulting from changes in law,
changes in facts or any other matters that hereafter might occur or be brought
to our attention.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus included therein. This opinion is not to be used,
circulated, quoted, referred to or relied upon by any other person or for any
other purpose without our prior written consent.
Very truly yours,
/s/ Ballard Spahr Andrews
& Ingersoll, LLP
<PAGE> 1
EXHIBIT 12.1
STATEMENT OF COMPUTATION OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
(dollars in thousands) 1997 1996 1995 1994 1993 1992
----------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
INCOME BEFORE INCOME TAXES $158,387 $144,119 $131,720 $120,834 $117,228 $108,700
==========================================================
FIXED CHARGES:
INTEREST EXPENSE $200,623 $188,629 $179,977 $123,552 $116,125 $150,297
CAPITALIZED INTEREST 1,901 541 114 0 0 0
----------------------------------------------------------
TOTAL FIXED CHARGES $202,524 $189,170 $180,091 $123,552 $116,125 $150,297
==========================================================
INTEREST EXPENSE ON DEPOSITS $134,176 $121,955 $105,304 $ 90,477 $ 98,794 $131,993
==========================================================
RATIO OF EARNINGS TO FIXED CHARGES:
EXCLUDING INTEREST ON DEPOSITS (1) 3.3 3.1 2.8 4.7 7.8 6.9
INCLUDING INTEREST ON DEPOSITS (2) 1.8 1.8 1.7 2.0 2.0 1.7
</TABLE>
(1) INCOME BEFORE INCOME TAXES + INTEREST EXPENSE - INTEREST EXPENSE ON
DEPOSITS
____________________________________________________________________
TOTAL FIXED CHARGES - INTEREST EXPENSE ON DEPOSITS
(2) INCOME BEFORE INCOME TAXES + INTEREST EXPENSE
_____________________________________________
TOTAL FIXED CHARGES
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333- ) and related Prospectus of
Wilmington Trust Corporation for the registration of $225 million in debt
securities and to the incorporation by reference therein of our report dated
January 23, 1998, with respect to the consolidated financial statements of
Wilmington Trust Corporation incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1997, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
March 27, 1998
<PAGE> 1
EXHIBIT 25.1
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)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. NATIONAL BANKING ASSOCIATION 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
SIXTH STREET AND MARQUETTE AVENUE
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
Stanley S. Stroup, General Counsel
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(612) 667-1234
(Agent for Service)
-----------------------------
WILMINGTON TRUST CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 51-0328154
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1100 NORTH MARKET STREET
RODNEY SQUARE NORTH
WILMINGTON, DE 19890
(Address of principal executive offices) (Zip code)
-----------------------------
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
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 the Currency
Treasury Department
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 Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is
not in default as provided under Item 13.
<TABLE>
<S> <C>
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility.
Norwest Bank incorporates by reference into this Form T-1 the exhibits attached
hereto.
Exhibit 1. a. A copy of the Articles of Association of the trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of the trustee to commence
business issued June 28, 1872, by the Comptroller of the Currency to The
Northwestern National Bank of Minneapolis.*
b. A copy of the certificate of the Comptroller of the Currency dated
January 2, 1934, approving the consolidation of The Northwestern
National Bank of Minneapolis and The Minnesota Loan and Trust
Company of Minneapolis, with the surviving entity being titled
Northwestern National Bank and Trust Company of Minneapolis.*
c. A copy of the certificate of the Acting Comptroller of the
Currency dated January 12, 1943, as to change of corporate title of
Northwestern National Bank and Trust Company of Minneapolis to
Northwestern National Bank of Minneapolis.*
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
d. A copy of the letter dated May 12, 1983 from the Regional Counsel,
Comptroller of the Currency, acknowledging receipt of notice of name
change effective May 1, 1983 from Northwestern National Bank of
Minneapolis to Norwest Bank Minneapolis, National Association.*
e. A copy of the letter dated January 4, 1988 from the Administrator of
National Banks for the Comptroller of the Currency certifying
approval of consolidation and merger effective January 1, 1988 of
Norwest Bank Minneapolis, National Association with various other
banks under the title of "Norwest Bank Minnesota, National
Association."*
Exhibit 3. A copy of the authorization of the trustee to exercise corporate trust
powers issued January 2, 1934, by the Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b) of the Act.
Exhibit 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.**
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
</TABLE>
* Incorporated by reference to exhibit number 25 filed with
registration statement number 33-66026.
** Incorporated by reference to exhibit number 25 filed with
registration statement number 333-47427.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Norwest Bank Minnesota, National Association, 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
Minneapolis and State of Minnesota on the 18th day of March 1998.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Y. Schweiger
-------------------------------------
Jane Y. Schweiger
Corporate Trust Officer
<PAGE> 5
EXHIBIT 6
March 18, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Y. Schweiger
--------------------------------------
Jane Y. Schweiger
Corporate Trust Officer
