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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) December 1, 1997
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The Money Store Inc.
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(Exact name of registrant as specified in its charter)
New Jersey 001-10785 22-2293022
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(State or other jurisdiction of (Commission (IRS Employer
incorporation) File Number) ID Number)
2840 Morris Avenue, Union, New Jersey 07083
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(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number,
including area code: (908) 686-2000
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
Included herein respectively as Exhibits 1.1, 4.1, 4.2, 4.3, 4.4 and 4.5 are (i)
the Underwriting Agreement dated December 3, 1997 among The Money Store Inc.
(the "Company"), Prudential Securities Incorporated, Bear, Stearns & Co. Inc.,
NationsBanc Montgomery Securities, Inc., and Salomon Brothers Inc, (ii) the
Indenture dated as of December 1, 1997 among the Company, as the Issuer, and The
Bank of New York, as Trustee (the "Trustee"), (iii) the First Supplemental
Indenture dated as of December 1, 1997 among the Company and the Trustee
relating to the issuance by the Company of $150,000,000 aggregate principal
amount of its 7.30% Subordinated Notes Due 2002, (iv) the Second Supplemental
Indenture dated as of December 1, 1997 among the Company and the Trustee
relating to the issuance by the Company of $100,000,000 aggregate principal
amount of its 7.95% Subordinated Notes due 2007, (v) the Form of 7.30%
Subordinated Notes Due 2002, and (vi) the Form of 7.95% Subordinated Notes Due
2007.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
Exhibit No.
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1.1 Underwriting Agreement dated December 3, 1997 among The Money Store
Inc., Prudential Securities Incorporated, Bear, Stearns & Co., Inc.,
NationsBanc Montgomery Securities, Inc., and Salomon Brothers Inc.
4.1 Indenture dated as of December 1, 1997 among The Money Store Inc., as
Issuer and The Bank of New York, as Trustee.
4.2 First Supplemental Indenture dated as of December 1, 1997 among The
Money Store Inc. and The Bank of New York, as Trustee.
4.3 Second Supplemental Indenture dated as of December 1, 1997 among The
Money Store Inc. and The Bank of New York, as Trustee.
4.4 Form of 7.30% Subordinated Notes Due 2002 (included in Exhibit 4.2).
4.5 Form of 7.95% Subordinated Notes Due 2007 (included in Exhibit 4.3).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE MONEY STORE INC.
By: /s/ Morton Dear
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Morton Dear
Senior Executive Vice President
Dated: December 10, 1997
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EXHIBIT INDEX
Exhibit Description of Exhibit
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1.1 Underwriting Agreement dated December 3, 1997 among The
Money Store Inc., Prudential Securities Incorporated, Bear,
Stearns & Co., Inc., NationsBanc Montgomery Securities,
Inc., and Salomon Brothers Inc.
4.1 Indenture dated as of December 1, 1997 among The Money Store
Inc., as Issuer and The Bank of New York, as Trustee.
4.2 First Supplemental Indenture dated as of December 1, 1997
among The Money Store Inc. and The Bank of New York, as
Trustee.
4.3 Second Supplemental Indenture dated as of December 1, 1997
among The Money Store Inc. and The Bank of New York, as
Trustee.
4.4 Form of 7.30% Subordinated Notes Due 2002 (included in
Exhibit 4.2).
4.5 Form of 7.95% Subordinated Notes Due 2007 (included in
Exhibit 4.7).
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EXHIBIT 1.1
$250,000,000
THE MONEY STORE INC.
$150,000,000 7.30% SUBORDINATED NOTES DUE 2002
$100,000,000 7.95% SUBORDINATED NOTES DUE 2007
UNDERWRITING AGREEMENT
New York, New York
December 3, 1997
Prudential Securities Incorporated
Bear, Stearns & Co. Inc.
NationsBanc Montgomery Securities, Inc.
Salomon Brothers Inc
c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292-2014
Dear Sirs:
The Money Store Inc., a New Jersey corporation (the "Company"), proposes to
issue and sell to you, the underwriters (the "Underwriters"), the principal
amount of its securities identified in SCHEDULE IA and SCHEDULE IB hereto (the
"Notes"), to be issued under the Indenture to be dated as of December 1, 1997
among the Company and The Bank of New York, as trustee (the "Trustee"), as
amended and supplemented by the First Supplemental Indenture to be dated as of
December 1, 1997 among the Company and the Trustee and the Second Supplemental
Indenture to be dated as of as of December 1, 1997 among the Company and the
Trustee (collectively, the "Indenture"). The Notes are more fully described in
the Final Prospectus referred to below.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter, that:
a. The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in SCHEDULE I
hereto), which has become effective, for the registration under the Act of
the Notes. Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415 under the Act and
complies in all other material respects with said Rule. The Company will
file with the Commission pursuant to Rule 424 and/or Rule 434 under the Act
a supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof and
has previously advised you of all further information (financial and other)
with respect to the Company to be set forth therein.
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Such registration statement, including all financial schedules and exhibits
thereto, as amended at the time when it is declared effective, is
hereinafter called the "Registration Statement"; such prospectus in the
form in which it appears in the Registration Statement is hereinafter
called the "Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant to Rule
424 and/or Rule 434 (including the Basic Prospectus as so supplemented) is
hereinafter called the "Final Prospectus." Any preliminary form of the
Final Prospectus which has heretofore been filed pursuant to Rule 424(b)
hereinafter is called the "Supplemented Prospectus." Any reference herein
to the Registration Statement, the Basic Prospectus, any Supplemented
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement, or the issue date of the Basic
Prospectus, any Supplemented 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, and the Supplemented Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of such
Registration Statement, Basic Prospectus, any Supplemented Prospectus or
the Final Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
b. When any Supplemented Prospectus is filed pursuant to Rule 424 or
Rule 434 under the Act, when the Final Prospectus is first filed pursuant
to Rule 424 or Rule 434 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final Prospectus
is filed with the Commission and at the Closing Date (as hereinafter
defined), (i) the Registration Statement as amended as of any such time,
the Supplemented Prospectus, as amended or supplemented as of any such
time, and the Final Prospectus, as amended or supplemented as of any such
time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the Exchange Act and the
respective rules thereunder, (ii) the Registration Statement, as amended as
of any such time, 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, (iii) the
Supplemented Prospectus, as amended or supplemented as of any such time,
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, in light of the circumstances under which they
were made, not misleading, and (iv) the Final Prospectus, as amended or
supplemented as of any such time, 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, in light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (A)
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee (Form T-1) under
the Trust Indenture Act of the Trustee or (B) the information contained in
or omitted from the Registration Statement, the Supplemented Prospectus, or
the Final Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement, the
Supplemented Prospectus and the Final Prospectus.
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c. Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, except as set
forth in the Registration Statement and the Final Prospectus, (i) there has
been no material adverse change or any development involving a prospective
material adverse change in the business, properties, assets, operations,
condition (financial or other), net worth or results of operations of the
Company and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, (ii) since the date of the
latest balance sheet presented in the Registration Statement and the Final
Prospectus, neither the Company nor any of its subsidiaries were incurred
or undertaken any liabilities or obligations, direct or contingent, which
are material to the Company and its subsidiaries taken as a whole, except
for liabilities or obligations which are reflected or specifically
described in the Registration Statement and the Final Prospectus or
incurred in the ordinary course of business, and (iii) neither the Company
nor any of its subsidiaries have entered into any transactions, other than
those in the ordinary course of business or disclosed in the Registration
Statement and Final Prospectus, which are material to the Company and its
subsidiaries taken as a whole.
d. Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any other party, is now, or is reasonably expected by
the Company or any of its subsidiaries to be, in violation or breach of, or
default (disregarding any grace or notice provision) with respect to any
material provision of any material contract, agreement, instrument, lease
or, license to which the Company or any of its subsidiaries is a party,
which violation, breach or default or violations, breaches or defaults,
singly or in the aggregate has, or can reasonably be expected in the future
to have, a material adverse effect on the business, properties, assets,
operations, condition (financial or other), net worth or results of
operations of the Company and its subsidiaries taken as a whole; and each
such material contract, agreement, instrument, lease and is in full force
and is the legal, valid and binding obligation of the Company or its
subsidiaries, as the case may be, and is enforceable as to the Company or
its subsidiaries, as the case may be, in accordance with its terms subject,
as to enforceability, to applicable bankruptcy, reorganization, moratorium
or other similar laws of general application affecting the rights of
creditors generally, except where such failure to be in full force or to be
a legal, valid and binding obligation or to be enforceable, as the case may
be, has not had, or would not reasonably be expected in the future to have,
a material adverse effect on the business, properties, assets, operations,
condition (financial or other), net worth or results of operations of the
Company and its subsidiaries taken as a whole.
e. Except as described in the Final Prospectus, there is no
litigation or governmental proceeding to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject or which is pending or, to the knowledge of the
Company, contemplated against the Company or any of its subsidiaries which
could reasonably be expected to have a material adverse affect on the
business, properties, assets, operations, condition (financial or other),
net worth or results of operations of the Company and its subsidiaries
taken as a whole or which is required to be disclosed in the Registration
Statement and the Final Prospectus.
f. The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the Final
Prospectus present fairly the financial position of the Company and its
subsidiaries as of the dates indicated and the results of its operations
for the periods specified; except as otherwise stated in the Registration
Statement, said
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financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis.
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 respective principal amount of the Notes set forth
opposite such Underwriter's name in SCHEDULE II hereto.
3. Delivery and Payment. Delivery of and payment for the Notes shall be
made on the date and at the time specified in SCHEDULE I hereto, which date and
time may be postponed by agreement between the Underwriters and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for
the Notes being herein called the "Closing Date"). Delivery of the Notes shall
be made to the Underwriters against payment by the Underwriters of the purchase
price thereof in the manner set forth in SCHEDULE I hereto. Certificates for
the Notes shall be in the form of one or more permanent global certificates in
definitive form deposited with the Paying Agent, Security Registrar and Transfer
Agent as custodian for The Depository Trust Company ("DTC") and registered in
the name of Cede & Co., as nominee for DTC.
The Company agrees to have the Notes available for inspection by the
Underwriters in New York, New York, not later than 1:00 PM on the business day
prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
a. Prior to the termination of the offering of the Notes, the Company
will not file any amendment of the Registration Statement or supplement
(including the Final Prospectus) to the Basic Prospectus 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, the Company will cause the Final
Prospectus to be filed with the Commission pursuant to Rule 424 or Rule
434. The Company will advise the Underwriters promptly (i) when the Final
Prospectus shall have been filed with the Commission pursuant to Rule 424
or Rule 434, (ii) when any amendment to the Registration Statement relating
to the Notes shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Final Prospectus or for any additional information,
(iv) 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 (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
b. If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which, in the opinion of counsel to the Company, the Final Prospectus as
then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or if, in the opinion of counsel to the Company, it
shall be necessary to amend or supplement the Final Prospectus to
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comply with the Act or the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
c. The Company, as soon as practicable, will make generally available
to its security holders and to the Underwriters a consolidated earnings
statement of the Company and its subsidiaries that satisfies the provisions
of Section 11(a) of the Act and Rule 158 thereunder.
d. The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Supplemented Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Underwriters may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
e. The Company will arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as the Underwriters may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Notes and will arrange for the
determination of the legality of the Notes for purchase by institutional
investors; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to general or unlimited
service of process of any jurisdiction where it is not now so subject.
f. The Company will not voluntarily claim, and will resist actively
any attempts to claim, the benefit of any usury laws against the holders of
the Notes.
g. Neither the Company nor any of its subsidiaries will take,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Notes. Until the business day following the Closing Date, the Company will
not, without the consent of the Underwriters, offer or sell, or announce
the offering of, any securities (other than the Notes) covered by the
Registration Statement or by any other registration statement filed under
the Act.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Notes shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy in all material respects of
the opinions, certificates or letters furnished to you or to Sills Cummis
Zuckerman Radin Tischman Epstein & Gross, P.A., counsel for the Underwriters,
pursuant to the provisions hereof, to the performance by the Company in all
material respects of its obligations hereunder and to the following additional
conditions:
a. No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have
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been instituted or threatened; and the Final Prospectus shall have been
filed with the Commission within the time period prescribed by the
Commission.
b. The Company shall have furnished to the Underwriters the opinion,
dated the Closing Date, of Eric R. Elwin, Esq., Vice President and
Corporate Counsel for the Company, in substantially the form attached as
EXHIBIT A hereto.
c. The Company shall have furnished to the Underwriters the opinion,
dated the Closing Date, of Stroock & Stroock & Lavan LLP, counsel for the
Company, in substantially the form attached as EXHIBIT B hereto.
d. All proceedings taken in connection with the sale of the Notes as
herein contemplated shall be reasonably satisfactory in form and substance
to you and to Sills Cummis Zuckerman Radin Tischman Epstein & Gross, P.A.,
counsel for the Underwriters, and the Underwriters shall have received from
counsel for the Underwriters such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Notes, the Indenture,
the Registration Statement, the Final Prospectus and other related matters
as the Underwriters 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.
e. The Company shall have furnished to the Underwriters a certificate
of the Company, signed by the Chief Executive Officer or a Senior or
Executive Vice President and the principal financial or accounting officer
or Treasurer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus and this Agreement and that to the best of
their knowledge:
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 in all material respects 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, as amended, and no order directed at any
document incorporated by reference in the Registration Statement or
the Final Prospectus or any amendment or supplement thereto has been
issued, and no proceedings for that purpose have been instituted or
threatened or, to the best of the Company's knowledge, are
contemplated by the Commission; and
iii since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus, there
has been no material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
otherwise), management, net worth, or results of operations of the
Company and its subsidiaries, considered 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.
f. KPMG Peat Marwick LLP shall have furnished to the Underwriters a
letter or letters (which may refer to letters previously delivered to one
or more of the Underwriters), dated
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the date hereof, in form and substance satisfactory to the Underwriters,
confirming that the response, if any, to Item 10 of the Registration
Statement is correct insofar as it relates to them and stating in effect
that:
i. They are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules
and regulations thereunder.
ii. In their opinion, the consolidated financial statements of
the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the Act and the regulations thereunder with
respect to registration statements on Form S-3 and the Exchange Act
and the regulations thereunder.
iii. On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(1) Reading the minutes of the meetings of the shareholders,
the board of directors, executive committee and audit committee
of the Company and the boards of directors and executive
committees of its subsidiaries as set forth in the minute books
through a specified date not more than five business days prior
to the date of delivery of such letter; and
(2) Making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters
regarding the specific items for which representations are
requested below; nothing has come to their attention as a result
of the foregoing procedures that caused them to believe that:
(a) (i) at the date of the latest available interim
financial data and at the specified date not more than five
business days prior to the date of the delivery of such letter,
there was any change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or any decreases
in shareholders' equity of the Company and the subsidiaries on a
consolidated basis as compared with the amounts shown in the
latest balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or (ii for the period
from the date of the latest available financial data to a
specified date not more than five business days prior to the
delivery of such letter, there was any change in the capital
stock or the long-term debt (other than scheduled repayments of
such debt) or any decreases in shareholders' equity of the
Company and the subsidiaries on a consolidated basis, except in
all instances for changes or decreases which the Registration
Statement and Prospectus discloses have occurred or may occur, or
KPMG Peat Marwick LLP shall state any specific changes or
decreases.
iv. The letter shall also state that KPMG Peat Marwick LLP has
carried out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the
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Underwriters and agreed to by KPMG Peat Marwick LLP, and has found
such amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter. In addition,
on the Closing Date, KPMG Peat Marwick LLP shall have furnished to the
Underwriters a letter or letters, dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect set forth in
SCHEDULE IA and SCHEDULE IB hereto.
g. Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (f) of this Section 5 or (ii) any change, in or
affecting the earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Underwriters, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or the delivery of the Notes as contemplated by the Registration
Statement and the Final Prospectus.
h. Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
If any of the conditions specified in this Section 5 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 Underwriters and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile
transmission confirmed in writing.
6. Payment of Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the copying of this Agreement and the Indenture,
(iii) the preparation, issuance and delivery of the certificates for the Notes
to the Underwriters, including capital duties, stamp duties and stock transfer
taxes, if any, payable upon issuance of any of the Notes, the sale of the Notes
to the Underwriters and the fees and expenses of the transfer agent for the
Notes, (iv) the fees and disbursements of the Company's counsel and accountants,
(v) the qualification of the Notes under state securities laws in accordance
with the provisions of Section 4(e), including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey, (vi) the printing
and delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of the preliminary prospectuses,
and of the Prospectuses and any amendments or supplements thereto, (vii) the
printing and delivery to the Underwriters of copies of the Blue Sky Survey, and
(viii) the fee of the National Association of Securities Dealers, Inc., if any.
The Underwriters agree to reimburse the Company for expenses in the amount of
$175,000.00 incurred by the Company in connection with the sale of the Notes.
If the sale of the Notes provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any
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provision hereof other than by reason of a default by any of the Underwriters,
the Company will reimburse the Underwriters severally upon 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 Notes.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless 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 Notes as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Supplemented 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
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:
(i) 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 specifically for use in connection with the
preparation thereof, and
(ii) such indemnity with respect to the Basic Prospectus or any
Supplemented Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased
the Notes which are the subject thereof if such Underwriters did not
send or deliver to such person a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of
the sale of such Notes to such person in any case where such delivery
is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Supplemented
Prospectus was corrected in the Final Prospectus (or the Final
Prospectus as amended or supplemented). This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally 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 specifically for use in the
preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which
9
<PAGE>
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page, or the first
paragraph of the inside front cover page and the third paragraph, fifth
paragraph (to the extent statements made therein relate to the market
making activities of the Underwriters) and sixth paragraph under the
heading "Underwriting" in the Supplemented Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred
to in the foregoing indemnity, and you, as the Underwriters, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under paragraphs
(a) or (b) of this Section 7 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 7, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under this
Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein, and, to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in 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,
the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless
(i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the
Underwriters in the case of subparagraph (a), representing the
indemnified parties under subparagraph (a) who are parties to such
action),
(ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action or
(iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying
party; and except that if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement
10
<PAGE>
or compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in the preceding paragraphs of this
Section 7 is due in accordance with its terms but is for any reason held by
a court to be unavailable from either indemnifying party on the grounds of
policy or otherwise or is insufficient, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Company and one or more of
the Underwriters may be subject in such proportion so that the Underwriters
are responsible for that portion represented by the percentage that the
underwriting discount bears to the sum of such discount and the purchase
price of the Notes specified in SCHEDULE IA or SCHEDULE IB hereto and the
Company is responsible for the balance; provided, however, that
(i) in no case shall any Underwriter (except as may be provided
in any agreement among underwriters relating to the offering of the
Notes) be responsible for any amount in excess of the underwriting
discount applicable to the Notes purchased by such Underwriter
hereunder, and
(ii) 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 7, each person who
controls an Underwriter within the meaning of the Act 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.
8. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Notes 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 amount of Notes set forth
opposite their names in SCHEDULE II hereto bear to the aggregate amount of Notes
set forth opposite the names of all the remaining Underwriters) the Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Notes 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 Notes, and if such non-defaulting
Underwriters do not purchase all the Notes, this Agreement will terminate
without liability to any non-defaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this Section 8, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the non-defaulting Underwriters shall determine in order that the required
changes in the Registration Statement and the Final Prospectus
11
<PAGE>
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 non-defaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for the Notes, if prior to such time (i) trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on either the exchange or market system, (ii) a banking moratorium
shall have been declared either by New York or Federal authorities or (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Underwriters, impracticable to market the Notes.
10. 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 7 hereof,
and will survive delivery of and payment for the Notes. The provisions of
Section 6 and 7 hereof and this Section 10 shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
SCHEDULE IA AND SCHEDULE IB hereto, with a copy to: Sills Cummis Zuckerman
Radin Tischman Epstein & Gross, P.A., One Riverfront Plaza, Newark, New Jersey
07102-5400, Attention: Victor H. Boyajian, Esq.; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 2840 Morris
Avenue, Union, New Jersey 07083 to the attention of the Secretary, with a copy
to Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York, New York 10038-
4982, Attention: James R. Tanenbaum, Esq.
12. 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 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
[THIS AGREEMENT CONTINUES ON THE NEXT PAGE.]
12
<PAGE>
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,
THE MONEY STORE INC.
By:
____________________________________
Morton Dear
Vice Chairman
Senior Executive Vice President
Secretary
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
SCHEDULE I hereto
PRUDENTIAL SECURITIES INCORPORATED
BEAR, STEARNS & CO. INC.
NATIONSBANC MONTGOMERY SECURITIES, INC.
SALOMON BROTHERS INC
By: PRUDENTIAL SECURITIES INCORPORATED
By:
__________________________________
Francesco P. Sinatra
Managing Director
13
<PAGE>
SCHEDULE IA
Underwriting Agreement dated December 3, 1997
Registration Statement No. 333-24807
Underwriters: Prudential Securities Incorporated
Bear, Stearns & Co. Inc.
NationsBanc Montgomery Securities, Inc.
Salomon Brothers Inc
Address of Underwriters: c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292-2014
Title, Purchase Price and Description of Notes:
Title: 7.30% Subordinated Notes due 2002
Principal amount: $150,000,000
Date of Maturity: December 1, 2002
Interest Payment Dates: December 1 and June 1 of each year,
commencing June 1, 1998
Purchase price: 99.95% plus interest from December 1, 1997; payable in
federal (same day) funds, by wire transfer to an account previously
designated to the Underwriters by the Company.
Sinking fund provisions: There will be no sinking fund payments.
Redemption provisions: The Notes are not redeemable prior to
maturity.
Other provisions:
Closing Date, Time and Location: December 8, 1997, 10:00 a.m., New York City
time, Office of Stroock & Stroock & Lavan LLP,
180 Maiden Lane, New York, New York 10038-4982.
Listing: Not applicable.
Additional items to be covered by the letter from KPMG Peat
Marwick LLP delivered pursuant to Section 5(f):
<PAGE>
SCHEDULE IB
Underwriting Agreement dated December 3, 1997
Registration Statement No. 333-24807
Underwriters: Prudential Securities Incorporated
Bear, Stearns & Co. Inc.
NationsBanc Montgomery Securities, Inc.
Salomon Brothers Inc
Address of Underwriters: c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292-2014
Title, Purchase Price and Description of Notes:
Title: 7.95% Subordinated Notes due 2007
Principal amount: $100,000,000
Date of Maturity: December 1, 2007
Interest Payment Dates: December 1 and June 1 of each year, commencing
June 1, 1998
Purchase price: 100% plus interest from December 1, 1997; payable in
federal (same day) funds, by wire transfer to an account previously
designated to the Underwriters by the Company.
Sinking fund provisions: There will be no sinking fund payments.
Redemption provisions: The Notes are not redeemable prior to maturity.
Other provisions:
Closing Date, Time and Location: December 8, 1997, 10:00 a.m., New York City
time, Office of Stroock & Stroock & Lavan LLP,
180 Maiden Lane, New York, New York 10038-4982.
Listing: Not applicable.
Additional items to be covered by the letter from KPMG Peat
Marwick LLP delivered pursuant to Section 5(f):
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF FIVE PRINCIPAL AMOUNT OF TEN
UNDERWRITERS YEAR NOTES TO BE PURCHASED YEAR NOTES TO BE PURCHASED
<S> <C> <C>
Prudential Securities $ 37,500,000 $ 25,000,000
Incorporated
Bear, Stearns & Co. Inc. 37,500,000 25,000,000
NationsBanc Montgomery 37,500,000 25,000,000
Securities, Inc.
Salomon Brothers Inc 37,500,000 25,000,000
TOTAL $150,000,000 $100,000,000
============ ============
</TABLE>
<PAGE>
EXHIBIT A
Form of opinion of Eric R. Elwin, Esq.
pursuant to Section 5(b) of the Underwriting Agreement
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of New Jersey.
2. The Company is duly qualified and in good standing as a foreign
corporation in each state listed on Exhibit ___ hereto (except as otherwise
indicated on Exhibit ___ hereto) and (ii) in each other jurisdiction where
each such entity owns or leases real property or where the conduct of its
business requires such qualification, except where the failure to be so
qualified or in good standing will not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
3. The Company has all requisite corporate power to execute and
deliver each of this Agreement and the Indenture and to carry out all the
terms and provisions hereof and thereof to be carried out by it, and to
carry on its business and own or lease its real property as described in
the Registration Statement or Prospectus.
4. The Company has authorized capital stock as set forth in the Final
Prospectus under the caption "Capitalization"; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable and were not issued in violation of or
subject to any preemptive or other rights to subscribe for or purchase
securities.
5. The execution and delivery of the Underwriting Agreement, the
Indenture and the Notes and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action of the Company and each of the Underwriting Agreement and
the Indenture has been duly executed and delivered by the Company.
6. No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of their respective properties are bound
or may be affected in any material adverse respect with regard to property,
business or operations of the Company or its subsidiaries.
7. There is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or any of their
respective properties of a character required to be described in the
Registration Statement or the Final Prospectus; and there is no contract or
other document of a character required to be described in the Registration
Statement or the Final Prospectus, or to be filed as an exhibit to the
Registration Statement, which is not described or filed as required.
8. The execution, delivery, and performance of the Underwriting
Agreement and the Indenture and the consummation of the transactions
contemplated hereby and thereby
A-1
<PAGE>
including the sale of and issuance of the Notes by the Company do not and
will not (A) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, any
material agreement or instrument to which the Company or any of its
subsidiaries is a party or to which their respective properties or assets
may be bound or (B) violate or conflict with any provision of the
certificate of incorporation or by-laws of the Company or any of its
subsidiaries, or, any statute, rule or regulation of any public,
governmental or regulatory agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties or assets.
No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental, or regulatory agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties or assets
is required for the execution, delivery and performance of the Underwriting
Agreement and the Indenture;
9. The description of the Notes which is included in the Final
Prospectus, insofar as such statements purport to summarize certain
provisions of the such Notes, provides a fair summary of such provisions;
the Indenture complies as to form in all material respects with the
requirements of the Trust Indenture Act, and the rules and regulations of
the Commission thereunder; and upon effectiveness of the Registration
Statement, will be duly qualified under the Trust Indenture Act.
10. Insofar as statements in the Registration Statement, Supplemented
Prospectus and the Final Prospectus purport to summarize the provisions of
laws, rules, regulations, contracts, agreements, instruments, or licenses,
such statements constitute accurate summaries in all material respects.
11. The Company is not in violation or breach of, or in default with
respect to, any term of its articles of incorporation or bylaws. The
Company is not in violation of any federal or state law or regulation
relating to its lending activities, including, without limitation, rules
and regulations of the United States Small Business Administration, rules
and regulations of the Guaranteed Student Loan Program and applicable
banking laws, rules and regulations, except for any such violation of law
or regulation which would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
12. The Company and each of its subsidiaries possesses all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses as described in the Final Prospectus, and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
13. The statements set forth under the subheadings "Home Equity
Loans," "Commercial Loans," "Student Loans," "Auto Loans," "Loan Funding
and Borrowing Arrangements," "Regulation" and "Environmental Policies"
under the heading "Item 1. Business" and under the heading "Item 3. Legal
Proceedings" in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, insofar as such
A-2
<PAGE>
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, provide a fair summary of such legal
matters, documents and proceedings.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws other than the laws of the United States and
jurisdictions in which he is admitted upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company public
officials.
A-3
<PAGE>
EXHIBIT B
Form of opinion of Stroock & Stroock & Lavan
pursuant to Section 5(c) of the Underwriting Agreement
1. The Company has authorized capital stock as set forth in the Final
Prospectus under the caption "Capitalization"; all of the issued shares of
capital stock of the Company have been issued in compliance with all
applicable federal securities laws and (ii) were not issued in violation of
or subject to any preemptive or other rights to subscribe for or purchase
securities (other than statutory preemptive rights as to which we express
no opinion).
2. No legal or governmental proceedings are pending to which the
Company is a party or to which the property of the Company is subject that
are required to be described in the Registration Statement or the Final
Prospectus ("Proceedings") and are not described therein; no Proceedings
have been threatened against the Company or with respect to any of its
properties; and no contract or other document is required to be described
in the Registration Statement or the Final Prospectus or to be filed as an
exhibit to the Registration Statement that is not described therein or
filed as required.
3. Assuming its due authorization, execution and delivery, the
Indenture 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,
fraudulent conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies); and assuming the due
authorization of the Notes and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to the Underwriting Agreement, the Notes
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies).
4. The execution, delivery, and performance of the Underwriting
Agreement and the Indenture and the consummation of the transactions
contemplated hereby and thereby including the sale of and issuance of the
Notes by the Company do not and will not (A) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default (or
an event which with notice or lapse of time, or both, would constitute a
default) under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any agreement or instrument filed as an exhibit
to, or incorporated by reference in, the Registration Statement or (B)
violate or conflict with any provision of the certificate of incorporation
or by-laws of the Company or any of its subsidiaries, or any statute, rule
or regulation of any public, governmental or regulatory agency or body
having jurisdiction over the Company, its subsidiaries or any of their
respective properties or assets. No consent, approval, authorization,
order, registration, filing, qualification, license or permit of or with
any court or any public, governmental, or regulatory agency or body having
jurisdiction over the Company, or any of its properties or assets is
required for the execution,
B-1
<PAGE>
delivery and performance of the Underwriting Agreement and the Indenture or
the consummation of the transactions contemplated hereby or thereby except
for (1) such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by the
Underwriters (as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act, the Exchange Act and the
Trust Indenture Act. No consent of any party to any contract or agreement
filed as an exhibit to, or incorporated by reference in, the Registration
Statement, or under the provisions of any outstanding series of the
Company's preferred stock, is required for the execution, delivery, or
performance of the Underwriting Agreement or the Indenture.
5. No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of their respective properties are bound
or may be affected in any material adverse respect with regard to property,
business or operations of the Company or its subsidiaries.
6. There is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there in 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,
which is not described or filed as required;
7. The Registration Statement is effective under the Act; any filing
of the Final Prospectus pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); no stop order
suspending the effectiveness of the Registration Statement has been issued
and no order directed at any document incorporated by reference in the
Registration Statement or the Final Prospectus has been issued, and no
proceedings for that purpose have been instituted or threatened; the
Registration Statement, the Final Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and other financial
and statistical information contained therein or incorporated by reference
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
and the Exchange Act and the respective Rules and Regulations of the
Commission thereunder.
8. The statements set forth under the subheadings "Home Equity
Loans," "Commercial Loans," "Student Loans," "Auto Loans," "Loan Funding
and Borrowing Arrangements," "Regulation" and "Environmental Policies"
under the heading "Item 1. Business" and under the heading "Item 3. Legal
Proceedings" in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, provide a fair
summary of such legal matters, documents and proceedings.
9. The description of the Notes which is included in the Prospectus,
insofar as such statements purport to summarize certain provisions of the
such Notes, provides a fair summary of such provisions; the Indenture
complies as to form in all material respects with the
B-2
<PAGE>
requirements of the Trust Indenture Act, and the rules and regulations of
the Commission thereunder; and upon effectiveness of the Registration
Statement, will be duly qualified under the Trust Indenture Act.
10. Insofar as statements in the Registration Statement, Supplemented
Prospectus and the Final Prospectus purport to summarize the provisions of
laws, rules, regulations, contracts, agreements, instruments, or licenses,
such statements constitute accurate summaries in all material respects.
11. The Company and each of its subsidiaries are, and upon sale of
the Notes will be, exempt from registration under the Investment Company
Act of 1940.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the independent certified
public accountants of the Company and yourselves at which the contents of the
Registration Statement, the Final Prospectus and any amendment thereof or
supplement thereto and related matters were discussed and, although such counsel
has not undertaken to investigate or verify independently, and does not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Final Prospectus or any amendment
thereof or supplement thereto, on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company) such counsel has no reason to believe that
either the Registration Statement at the time it became effective (or any
amendment thereof made prior to the Closing Date, as of the date of such
amendment) contained an 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 the date
thereof (or any amendments thereof or supplement thereto made prior to the
Closing Date, as of the date of such amendment or such supplement) and as of the
Closing Date contained an untrue statement of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no belief or opinion with respect to the
financial statements and related notes, financial statement schedules, other
financial and statistical data and exhibits included therein or omitted
therefrom).
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws other than the laws of the United States and
jurisdictions in which he is admitted upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and public
officials.
B-3
<PAGE>
EXHIBIT 4.1
THE MONEY STORE INC.,
AS ISSUER
To
THE BANK OF NEW YORK,
AS TRUSTEE
__________
INDENTURE
DATED AS OF DECEMBER 1, 1997
__________
SUBORDINATED DEBT SECURITIES
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<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of December 1, 1997
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C> <C>
(S) 310 (a)(1) ............... 6.09
(a)(2) ............... 6.09
(a)(3) ............... Not Applicable
(a)(4) ............... Not Applicable
(a)(5) ............... 6.09
(b).................... 6.08, 6.10
(c).................... Not Applicable
(S) 311 (a).................... 6.13(a)
(b).................... 6.13(b)
(c).................... Not Applicable
(S) 312 (a).................... 7.01, 7.02(a)
(b).................... 7.02(b)
(c).................... 7.02(c)
(S) 313 (a).................... 7.03(a)
(b).................... 7.03(b)
(c).................... 7.03(a), 7.03(c)
(d).................... 7.03(d)
(S) 314 (a).................... 7.04, 12.02
(b).................... Not Applicable
(c) (1)................ 1.02
(c) (2)................ 1.02
(c) (3)................ Not Applicable
(d).................... Not Applicable
(e).................... 1.02
(S) 315 (a).................... 6.01(a), 6.01(c)
(b).................... 6.02,
...................... 7.03(a)(7)
(c).................... 6.01(b)
(d) (1)................ 6.01(a)
(d) (2)................ 6.01(c)(2)
(d) (3)................ 6.01(c)(3)
(e).................... 5.14
(S) 116 (a) (1) (A)............ 5.02, 5.12
(a) (1) (B)............ 5.13
(a) (2)................ Not Applicable
(b).................... 5.08
(c).................... Not Applicable
(S) 317 (a) (1)................ 5.03
(a) (2)................ 5.04
(b).................... 12.04
(S) 318 ...................... 1.06
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1.01. Definitions................................................. 1
Section 1.02. Compliance Certificates and Opinions........................ 12
Section 1.03. Form of Documents Delivered to Trustee...................... 13
Section 1.04. Notices, etc., to Trustee and Company....................... 14
Section 1.05. Notice to Holders; Waiver................................... 14
Section 1.06. Conflict with Trust Indenture Act........................... 15
Section 1.07. Effect of Headings and Table of Contents.................... 15
Section 1.08. Successors and Assigns...................................... 15
Section 1.09. Separability Clause......................................... 15
Section 1.10. Benefits of Indenture....................................... 16
Section 1.11. Governing Law............................................... 16
Section 1.12. Legal Holidays.............................................. 16
Section 1.13. No Security Interest Created................................ 16
Section 1.14. Liability Solely Corporate.................................. 16
Section 1.15. Counterparts................................................ 17
</TABLE>
ARTICLE TWO
DEBT SECURITY FORMS
<TABLE>
<CAPTION>
<S> <C> <C>
Section 2.01. Forms Generally............................................ 18
Section 2.02. Form of Trustee's Certificate of Authentication............ 18
Section 2.03. Securities in Global Form.................................. 19
</TABLE>
ARTICLE THREE
THE DEBT SECURITIES
<TABLE>
<CAPTION>
<S> <C> <C>
Section 3.01. Amount Unlimited; Issuable in Series....................... 19
Section 3.02. Denominations.............................................. 24
Section 3.03. Execution, Authentication, Delivery and Dating............. 24
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global
Notes for Definitive Bearer Securities; Global Notes
Representing Registered Securities......................... 26
Section 3.05. Registration, Transfer and Exchange........................ 32
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities...... 35
Section 3.07. Payment of Interest; Interest Rights Preserved............. 36
Section 3.08. Cancellation............................................... 38
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
Section 3.09. Computation of Interest.................................... 39
Section 3.10. Currency of Payments in Respect of Debt Securities......... 39
Section 3.11. Judgments.................................................. 43
Section 3.12. Exchange Upon Default...................................... 43
Section 3.13. CUSIP Numbers.............................................. 44
</TABLE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<TABLE>
<S> <C> <C>
Section 4.01. Satisfaction and Discharge of Indenture.................... 44
Section 4.02. Application of Trust Money................................. 46
</TABLE>
ARTICLE FIVE
REMEDIES
<TABLE>
<S> <C> <C>
Section 5.01. Events of Default.......................................... 46
Section 5.02. Acceleration of Maturity; Rescission and Annulment......... 47
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................... 48
Section 5.04. Trustee May File Proofs of Claim........................... 49
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
Securities................................................. 50
Section 5.06. Application of Money Collected............................. 51
Section 5.07. Limitation on Suits........................................ 51
Section 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................... 52
Section 5.09. Restoration of Rights and Remedies......................... 52
Section 5.10. Rights and Remedies Cumulative............................. 52
Section 5.11. Delay or Omission Not Waiver............................... 53
Section 5.12. Control by Holders......................................... 53
Section 5.13. Waiver of Past Defaults.................................... 53
Section 5.14. Undertaking for Costs...................................... 54
Section 5.15. Waiver of Stay or Extension Laws........................... 54
</TABLE>
ARTICLE SIX
THE TRUSTEE
<TABLE>
<S> <C> <C>
Section 6.01. Certain Duties and Responsibilities........................ 55
Section 6.02. Notice of Defaults......................................... 56
Section 6.03. Certain Rights of Trustee.................................. 57
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities 58
Section 6.05. May Hold Debt Securities................................... 58
Section 6.06. Money Held in Trust........................................ 58
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C> <C>
Section 6.07. Compensation and Reimbursement............................. 59
Section 6.08. Disqualification; Conflicting Interests.................... 59
Section 6.09. Corporate Trustee Required; Eligibility.................... 60
Section 6.10. Resignation and Removal; Appointment of Successor.......... 60
Section 6.11. Acceptance of Appointment by Successor..................... 62
Section 6.12. Merger, Conversion, Consolidation or Succession to Business 63
Section 6.13. Preferential Collection of Claims Against Company.......... 63
Section 6.14. Appointment of Authenticating Agent........................ 63
</TABLE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
<TABLE>
<S> <C> <C>
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders 65
Section 7.02. Preservation of Information; Communication to Holders.... 66
Section 7.03. Reports by Trustee....................................... 67
Section 7.04. Reports by Company....................................... 67
</TABLE>
ARTICLE EIGHT
CONCERNING THE HOLDERS
<TABLE>
<S> <C> <C>
Section 8.01. Acts of Holders.......................................... 68
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by
Holder................................................... 69
Section 8.03. Persons Deemed Owners.................................... 70
Section 8.04. Revocation of Consents; Future Holders Bound............. 70
</TABLE>
ARTICLE NINE
HOLDERS' MEETINGS
<TABLE>
<S> <C> <C>
Section 9.01. Purposes of Meetings..................................... 70
Section 9.02. Call of Meetings by Trustee.............................. 71
Section 9.03. Call of Meetings by Company or Holders................... 71
Section 9.04. Qualifications for Voting................................ 71
Section 9.05. Regulations.............................................. 72
Section 9.06. Voting................................................... 72
Section 9.07. No Delay of Rights by Meeting............................ 73
</TABLE>
ARTICLE TEN
INTENTIONALLY OMITTED
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<PAGE>
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
<TABLE>
<S> <C> <C>
Section 11.01. Supplemental Indentures Without Consent of Holders......... 73
Section 11.02. Supplemental Indentures With Consent of Holders............ 75
Section 11.03. Execution of Supplemental Indentures....................... 76
Section 11.04. Effect of Supplemental Indentures.......................... 76
Section 11.05. Conformity with Trust Indenture Act........................ 77
Section 11.06. Reference in Debt Securities to Supplemental Indentures.... 77
Section 11.07. Notice of Supplemental Indenture........................... 77
Section 11.08. Effect on Senior Indebtedness.............................. 77
</TABLE>
ARTICLE TWELVE
COVENANTS
<TABLE>
<S> <C> <C>
Section 12.01. Payment of Principal, Premium and Interest................. 77
Section 12.02. Officer's Certificate as to Default........................ 78
Section 12.03. Maintenance of Office or Agency............................ 78
Section 12.04. Money for Debt Securities; Payments to Be Held in Trust.... 79
Section 12.05. Corporate Existence........................................ 81
Section 12.06. Purchase of Debt Securities by Company..................... 81
Section 12.07. INTENTIONALLY OMITTED...................................... 81
Section 12.08. INTENTIONALLY OMITTED...................................... 81
Section 12.09. Waiver of Certain Covenants................................ 81
Section 12.10. Original Issue Discount.................................... 82
</TABLE>
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
<TABLE>
<S> <C> <C>
Section 13.01. Applicability of Article................................... 82
Section 13.02. Election to Redeem; Notice to Trustee...................... 82
Section 13.03. Selection by Trustee of Debt Securities to Be Redeemed..... 82
Section 13.04. Notice of Redemption....................................... 83
Section 13.05. Deposit of Redemption Price................................ 85
Section 13.06. Debt Securities Payable on Redemption Date................. 85
Section 13.07. Debt Securities Redeemed in Part........................... 86
</TABLE>
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<PAGE>
ARTICLE FOURTEEN
SINKING FUNDS
<TABLE>
<S> <C> <C>
Section 14.01. Applicability of Article.................................. 86
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with Debt
Securities................................................ 86
Section 14.03. Redemption of Debt Securities for Sinking Fund............ 87
</TABLE>
ARTICLE FIFTEEN
DEFEASANCE
<TABLE>
<S> <C> <C>
Section 15.01. Applicability of Article................................... 89
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligation................................................. 89
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be Held
in Trust................................................... 91
Section 15.04. Repayment to Company....................................... 91
</TABLE>
ARTICLE SIXTEEN
SUBORDINATION
<TABLE>
<S> <C> <C>
Section 16.01. Agreement to Subordinate................................... 92
Section 16.02. Distribution on Dissolution Liquidation and Reorganization;
Subrogation of Debt Securities............................. 92
Section 16.03. No Payment on Debt Securities in Event of Default on Senior
Indebtedness............................................... 95
Section 16.04. Payments on Debt Securities Permitted...................... 95
Section 16.05. Authorization of Holders to Trustee to Effect Subordination 95
Section 16.06. Notices to Trustee......................................... 95
Section 16.07. Trustee as Holder of Senior Indebtedness................... 96
Section 16.08. Modifications of Terms of Senior Indebtedness.............. 97
Section 16.09. Reliance on Judicial Order or Certificate of Liquidating
Agent...................................................... 97
Section 16.10. Article Sixteen Not to Prevent Events of Default........... 97
Section 16.11. Certain Conversions Not Deemed Payment..................... 97
</TABLE>
ARTICLE SEVENTEEN
CONVERSION
<TABLE>
<S> <C> <C>
Section 17.01. Applicability; Conversion Privilege........................ 98
Section 17.02. Conversion Procedure; Conversion Price; Fractional Shares.. 98
Section 17.03. Adjustment of Conversion Price for Common Stock............ 100
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
Section 17.04. Consolidation or Merger of the Company..................... 103
Section 17.05. Notice of Adjustment....................................... 104
Section 17.06. Notice in Certain Events................................... 104
Section 17.07. Company To Reserve Stock; Registration; Listing............ 105
Section 17.08. Taxes on Conversion........................................ 106
Section 17.09. Conversion After Record Date............................... 106
Section 17.10. Company Determination Final................................ 107
Section 17.11. Trustee's Disclaimer....................................... 107
</TABLE>
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<PAGE>
INDENTURE dated as of December 1, 1997, between THE MONEY STORE INC.,
a New Jersey corporation (hereinafter called the "Company"), having its
principal executive office at 2840 Morris Avenue, Union, New Jersey 07083, and
THE BANK OF NEW YORK, a New York banking association, as trustee (hereinafter
called the "Trustee"), having its Corporate Trust Office at 101 Barclay Street,
Floor 21 West, New York, New York 10286.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
subordinated debentures, notes, bonds or other evidences of indebtedness (herein
generally called the "Debt Securities"), to be issued in one or more series, as
in this Indenture provided.
All things necessary to make the Debt Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and 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 Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, 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:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting
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<PAGE>
principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted in the
United States of America at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning specified
in Section 8.01.
"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" has the meaning specified in Section 6.14.
"Authorized Newspaper" means a newspaper or financial journal in an
official language of the country of publication customarily published at least
once a day, and customarily published for at least five days in each calendar
week, and of general circulation in the place in connection with which the term
is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day in such
city.
"Bearer Security" means any Debt Security (with or without Coupons),
in the form established pursuant to Section 2.01, which is payable to bearer
(including any Global Note payable to bearer) and title to which passes by
delivery only, but does not include any Coupons.
"Board of Directors", when used with respect to the Company, means
either the board of directors, or any committee of that board, of the Company,
duly authorized to act hereunder or any director or directors and/or officer or
officers of the Company to whom that board or committee shall have delegated its
authority.
"Board Resolution", when used with respect to the Company, means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been
-2-
<PAGE>
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" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a day on which
banking institutions or trust companies in that Place of Payment or other
location are authorized or obligated by law to close, except as otherwise
specified pursuant to Section 3.01.
"CEDEL" means Cedel Bank, societe anonyme.
"Closing Price" of the Common Stock means the last reported sale price
of such stock as reported by the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or by any national securities exchange, or
in case no such sale takes place on such day, the average of the closing bid and
asked prices as reported by NASDAQ or by any national securities exchange, or if
such stock is not so reported, the average of the closing bid and asked prices
as furnished by any member of the National Association of Securities Dealers,
Inc., selected from time to time by the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended and as in
effect on the date hereof.
"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 of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Common Depositary" has the meaning specified in Section 3.04(b).
"Common Stock" means the class of Common Stock, no par value per
share, of the Company authorized at the date of this Indenture as originally
signed or any other class of stock resulting from successive changes or
reclassifications of such Common Stock and which does not have any priority in
the payment of dividends or upon liquidation over any other class of stock and
which is not subject to redemption by the Company; provided that if Debt
Securities convertible into Common Stock are outstanding at the time of such
successive changes or reclassifications and there shall be more than one such
resulting class of stock, the shares of each resulting class then so issuable
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
-3-
<PAGE>
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by any two of the Chairman, a
Vice Chairman, the President, the Chief Financial Officer, an Executive Vice
President, any Vice President, the Treasurer, the Controller or the Secretary of
the Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 3.10(i).
"Conversion Agent" means any Person authorized by the Company to
receive Debt Securities to be converted into Common Stock on behalf of the
Company. The Company initially authorizes the Trustee to act as Conversion
Agent for the Debt Securities on its behalf. The Company may at any time and
from time to time authorize one or more Persons to act as Conversion Agent in
addition to or in place of the Trustee with respect to any series of Debt
Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section 3.10(e).
"Conversion Event" means the cessation of (i) a Foreign Currency to be
used both by the government of the country which issued such Currency and for
the settlement of transactions by public institutions of or within the
international banking community, (ii) the ECU to be used both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any Currency Unit
other than the ECU to be used for the purposes for which it was established.
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Common Stock, the price per share of
Common Stock at which the Debt Securities of such series are so convertible, as
specified pursuant to Section 3.01 with respect to such series, as such price
may be adjusted from time to time in accordance with Section 17.03.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this instrument is
located at 101 Barclay Street, Floor 21 West, New York, New York 10286,
Attention: Corporate Trust Trustee Administration.
"Corporation" includes corporations, associations, companies
(including joint stock companies and limited liability companies) and business
trusts.
"Coupon" means any interest coupon appertaining to any Debt Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
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<PAGE>
"Credit Agreement" means that certain Credit Agreement dated as of
June 30, 1997 among the Company, as borrower, various financial institutions
signatory thereto, as lenders, First Union National Bank, as documentation
agent, and The First National Bank of Chicago, as administrative agent, as
amended, amended and restated, supplemented, extended, renewed, refunded,
refinanced or otherwise modified from time to time.
"Currency" means Dollars or Foreign Currency or Currency Unit.
"Currency Determination Agent" means the New York Clearing House bank,
if any, from time to time selected by the Company pursuant to Section 3.01;
provided that such agent shall accept such appointment in writing and the terms
- --------
of such appointment shall be acceptable to the Company and shall, in the opinion
of the Company and the Trustee at the time of such appointment, require such
agent to make the determinations required by this Indenture by a method
consistent with the method provided in this Indenture for the making of such
decision or determination.
"Current Market Price" on any date means the average of the daily
Closing Prices per share of Common Stock for any thirty (30) consecutive Trading
Days selected by the Company prior to the date in question, which thirty (30)
consecutive Trading Day period shall not commence more than forty-five (45)
Trading Days prior to the day in question; provided that with respect to Section
17.03(3), the "Current Market Price" of the Common Stock shall mean the average
of the daily Closing Prices per share of Common Stock for the five (5)
consecutive Trading Days ending on the date of the distribution referred to in
Section 17.03(3) (or if such date shall not be a Trading Day, on the Trading Day
immediately preceding such date).
"Currency Unit" means a composite currency or currency unit the value
of which is determined by reference to the value of the currencies of any group
of countries.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities (including any Global
Notes) authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Discharged" has the meaning specified in Section 15.02.
"Discount Security" means any Debt Security which is issued with
"original issue discount" within the meaning of Section 1273(a) of the Code and
the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time of payment is legal tender for
the payment of public and private debts.
-5-
<PAGE>
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor as operator of the Euro-clear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section 3.04(b).
"Exchange Rate Officer's Certificate" means a certificate setting
forth (i) the applicable Market Exchange Rate and (ii) the Dollar, Foreign
Currency or Currency Unit amounts of principal, premium, if any, and any
interest respectively (on an aggregate basis and on the basis of a Debt Security
having the lowest denomination principal amount determined in accordance with
Section 3.02 in the relevant Currency or Currency Unit), payable on the basis of
such Market Exchange Rate signed by the Treasurer or any Assistant Treasurer of
the Company.
"Fixed Rate Security" means a Debt Security which provides for the
payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index or any other index specified pursuant to Section 3.01.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency or currency unit
the value of which is determined by reference to the values of the currencies of
any group of countries.
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<PAGE>
"Global Note" means a Registered or Bearer Security evidencing all or
part of a series of Debt Securities, including, without limitation, any
temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the Registered
Holder, and with respect to a Bearer Security or a Coupon, the bearer thereof.
"Indebtedness" means (1) any liability of any Person (a) for borrowed
money, or (b) evidenced by a bond, note, debenture or similar instrument
(including purchase money obligations but excluding Trade Payables), or (c) for
the payment of money relating to a lease that is required to be classified as a
capitalized lease obligation in accordance with generally accepted accounting
principles, or (d) with respect to preferred or preference stock of a Subsidiary
of the Company held by Persons other than the Company or a Subsidiary of the
Company; (2) any liability of others described in the preceding clause (1) that
the Person has guaranteed, that is recourse to such Person or that is otherwise
its legal liability; and (3) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (1) and (2) above.
"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, unless the context otherwise requires, shall include the terms of a
particular series of Debt Securities as established pursuant to Section 3.01.
The term "interest," when used with respect to a Discount Security
which by its terms pays interest only after Maturity, means interest payable
after Maturity, and, when used with respect to a Bearer Security, includes any
additional amounts payable on such Bearer Security, if so provided pursuant to
Section 3.01.
"Interest Payment Date" with respect to any Debt Security means the
Stated Maturity of an installment of interest on such Debt Security.
"Market Exchange Rate" means (i) for any conversion involving a
Currency Unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant Currency Unit and Dollars or such Foreign
Currency calculated for noon, New York time, on the Valuation Date by the method
specified pursuant to Section 3.01 for the securities of the relevant series,
(ii) for any conversion of Dollars into any Foreign Currency, the noon (New York
City time) buying rate for such Foreign Currency for cable transfers quoted in
New York City as certified for customs purposes by the Federal Reserve Bank of
New York and (iii) for any conversion of one Foreign Currency into Dollars or
another Foreign Currency, the spot rate at noon local time in the relevant
market at which, in accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could be purchased with the
Foreign Currency from which conversion is being made from major banks located in
either New York City, London or any
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other principal market for Dollars or such purchased Foreign Currency. In the
event of the unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii) the Company, shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or other principal market
for such Currency or Currency Unit in question, or such other quotations as the
Company shall deem appropriate, in its sole discretion and without liability on
its part. Unless otherwise specified by the Currency Determination Agent, if
there is more than one market for dealing in any Currency or Currency Unit by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such Currency or Currency Unit shall be that, as determined by the
Currency Determination Agent, in its sole discretion and without liability on
its part, upon which a nonresident issuer of securities designated in such
Currency or Currency Unit would purchase such Currency or Currency Unit in order
to make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means the date
on which the principal of such Debt Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, repayment at
the option of the Holder thereof or otherwise.
"Officers' Certificate" means a certificate signed by any two of the
Chairman, a Vice Chairman, the President, the Chief Financial Officer, an
Executive Vice President, any Vice President, the Treasurer, the Controller or
the Secretary of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Company (including an employee of the Company) and who shall be
reasonably satisfactory to the Trustee, which is delivered to the Trustee.
"Outstanding" when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities with respect to which payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Debt Securities and any Coupons thereto pertaining;
provided, however, that if such Debt Securities are to be redeemed, notice of
- --------
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
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(iii) Debt Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any such Debt
Securities in respect of which there shall have been presented to the Trustee
proof reasonably satisfactory to it that such Debt Securities are held by a bona
fide purchaser in whose hands such Debt Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of Debt Securities Outstanding have performed any Act
hereunder, Debt Securities owned by the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such Act, only Debt
Securities which the Trustee actually knows to be so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Debt Securities and that
the pledgee is not the Company or any other obligor upon the Debt Securities or
any Affiliate of the Company or of such other obligor. In determining whether
the Holders of the requisite principal amount of Outstanding Debt Securities
have performed any Act hereunder, the principal amount of a Discount Security
that shall be deemed to be Outstanding for such purpose 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 5.02 and the principal amount of a Debt Security denominated
in a Foreign Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to Section 3.10(k).
"Overdue Rate", when used with respect to any series of the Debt
Securities, means the rate designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case may be, relating to such
series as contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"permanent Global Note" shall have the meaning given such term in
Section 3.04(b).
"Person" means any individual, Corporation, partnership, joint
venture, association, trust, estate, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt Securities of
any series means the place or places where the principal of (and premium, if
any) and interest on the Debt Securities of that series are payable as specified
pursuant to Section 3.01.
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"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.06 in
lieu of a mutilated, lost, destroyed or stolen Debt Security or a Debt Security
to which a mutilated, lost, destroyed or stolen Coupon appertains shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Debt Security or the Debt Security to which the mutilated, lost, destroyed or
stolen Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any Debt
Security pursuant to this Indenture which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to Section 3.01, shall be an
Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security, the
amount of the principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02 or any other redemption specified pursuant to Section
3.01, and in the case of any other Debt Security, the principal amount thereof,
plus, in each case, premium, if any, and accrued and unpaid interest, if any, to
the Redemption Date.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form established
pursuant to Section 2.01 which is registered as to principal and interest in the
Security Register.
"Regular Record Date" for the interest payable on the Registered
Securities of any series on any Interest Payment Date means the date specified
for the purpose pursuant to Section 3.01 for such Interest Payment Date.
"Representative" shall mean the indenture trustee or other trustee,
agent or representative for any Senior Indebtedness or the Person to whom such
Senior Indebtedness is owing, if there is no such trustee, agent or
representative for such Senior Indebtedness.
"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 to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05(a).
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest (including any interest accruing subsequent to the filing of a
petition in bankruptcy at
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the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on, and any fees, costs,
expenses and any other amounts (including indemnity obligations and
reimbursement obligations under letters of credit) related to the following,
whether outstanding on the date of this Indenture or thereafter created,
incurred, assumed or guaranteed, (i) Indebtedness of the Company (other than the
Indebtedness evidenced by the Debt Securities of any series), unless in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding it is provided that such Indebtedness is not senior or prior in
right of payment to the Debt Securities or is pari passu or subordinate by its
---- -----
terms in right of payment to the Debt Securities, and (ii) renewals, extensions
and modifications of any such Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07(c)(1).
"Specified Amount" has the meaning specified in Section 3.10(i).
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof or premium thereon or interest thereon means
the date specified in such Debt Security or the Coupon, if any, representing
such installment of interest, as the date on which the principal of such Debt
Security or such installment of principal, premium or interest is due and
payable.
"Subsidiary" means any Corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors of such Corporation, irrespective of whether or not,
at the time, stock of any other class or classes of such Corporation shall have
or might have voting power by reason of the happening of any contingency, is at
the time, directly or indirectly, owned or controlled by the Company or by one
or more Subsidiaries thereof, or by the Company and one or more Subsidiaries
thereof.
"temporary Global Note" shall have the meaning given such term in
Section 3.04(b).
"Trade Payables" means accounts payable or any other indebtedness or
monetary obligations to trade creditors created or assumed in the ordinary
course of business in connection with the obtaining of materials or services.
"Trading Day" means, with respect to the Common Stock, a day on which
the New York Stock Exchange is open for the transaction of business.
"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"
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as used with respect to the Debt Securities of any series shall mean the Trustee
with respect to Debt Securities of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this instrument was executed,
except as provided in Section 11.05; provided, however, that in the event the
Trust Indenture Act is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture Act as so
amended.
"United States" means the United States of America (including the
States and the District of Columbia), and its possessions, which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the
Exchange Act, or any successor thereto, which shall in either case be designated
by the Company pursuant to Section 3.01 until a successor U.S. Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities of any
series shall mean the U.S. Depositary with respect to the Debt Securities of
that series.
"U.S. Government Obligations" has the meaning specified in Section
15.02.
"U.S. Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States, or an estate or trust the income of which is subject
to United States Federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the Trustee,
any Vice President of the Company or the Trustee, as the case may be, whether or
not designated by a number or word or words added before or after the title
"Vice President".
"Wholly-Owned Subsidiary" means a Subsidiary of which all of the
outstanding voting stock (other than directors' qualifying shares) is at the
time, directly or indirectly, owned by the Company, or by one or more Wholly-
Owned Subsidiaries of the Company or by the Company and one or more Wholly-Owned
Subsidiaries of the Company.
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
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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 Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture (other
than certificates provided pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such Officers'
Certificate or Opinion of Counsel has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) 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
(4) 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.
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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. Notices, etc., to Trustee and Company.
-------------------------------------
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Trustee Administration.
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid or airmail postage
prepaid if sent from outside the United States, to the Company addressed to
it at the address of its principal office specified in the first paragraph
of this Indenture, to the attention of its Treasurer, or at any other
address previously furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Section 1.05. Notice to Holders; Waiver.
-------------------------
When this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed, and (2) such notice shall be
sufficiently given to Holders of Bearer Securities or Coupons (unless otherwise
herein expressly provided) if published at least twice in an Authorized
Newspaper or Newspapers in The City of New York and, if Debt Securities of such
series are then listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, in a
daily newspaper or financial journal in London or Luxembourg or in such other
city or cities specified pursuant to Section 3.01 or in any Debt Security on
Business Days, the first such publication to be not earlier than the earliest
date and not later than the latest date prescribed for the giving of such
notice; provided, however, that, in any case, any notice to Holders of Floating
-----------------
Rate Securities regarding the determination of a periodic rate of interest, if
such notice is required pursuant to Section 3.01, shall be sufficiently given if
given in the manner specified pursuant to Section 3.01.
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In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
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 on such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Section 1.06. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such duties imposed by the Trust Indenture Act shall
control.
Section 1.07. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns and inure to the benefit of
their permitted successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
-------------------
In case any provision in this Indenture or in the Debt 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.
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Section 1.10. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law.
-------------
This Indenture, the Debt Securities and the Coupons shall be deemed to
be contracts made and to be performed entirely in the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State without regard to the conflicts of law rules of said State.
Section 1.12. Legal Holidays.
--------------
Unless otherwise specified pursuant to Section 3.01 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series or the last date on which a Holder
has the right to convert any Debt Securities of any series which is convertible
shall not be a Business Day at any Place of Payment for the Debt Securities of
that series, then (notwithstanding any other provision of this Indenture or of
the Debt Securities or Coupons) payment of principal (and premium, if any) or
interest need not be made at such Place of Payment on such date and such Debt
Securities need not be converted on such date, but any such payment may be made
at such Place of Payment and such Debt Securities may be converted, on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity or on such last
day for conversion, and no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day if such payment is made or
duly provided for on such Business Day.
Section 1.13. No Security Interest Created.
----------------------------
Nothing in this Indenture or in the Debt Securities or Coupons,
express or implied, shall be construed to constitute a security interest or
mortgage or other pledge of collateral under the Uniform Commercial Code or
similar legislation or real property laws, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company or its Subsidiaries is
or may be located.
Section 1.14. Liability Solely Corporate.
--------------------------
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities or Coupons, or any part
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this
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Indenture, against any incorporator, or against any stockholder, officer or
director, as such, past, present or future, of the Company (or any incorporator,
stockholder, officer or director of any predecessor or successor corporation),
either directly or through the Company (or any such predecessor or successor
corporation), 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
agreed and understood that this Indenture and all the Debt Securities and
Coupons are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company (or
any incorporator, stockholder, officer or director of any such predecessor or
successor corporation), either directly or indirectly through the Company or any
such predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants, promises
or agreements contained in this Indenture or in any of the Debt Securities or
Coupons or to be implied herefrom or therefrom; and that any such personal
liability is hereby expressly waived and released as a condition of, and as part
of the consideration for, the execution of this Indenture and the issue of Debt
Securities; provided, however, that nothing herein or in the Debt Securities or
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Coupons contained shall be taken to prevent recourse to and the enforcement of
the liability, if any, of any stockholder or subscriber to capital stock upon or
in respect of the shares of capital stock not fully paid.
Section 1.15. Counterparts.
------------
This Indenture may be executed in counterparts (including executed
counterparts delivered and exchanged by facsimile transmission) each of which
shall be deemed to constitute one and the same instrument.
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ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. Forms Generally.
---------------
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution of the Company or one or more indentures
supplemental hereto, and 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
or designation and such legends or endorsements placed thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which any series of the Debt Securities may be listed, or
to conform to usage, all as determined by the officers executing such Debt
Securities and Coupons, as conclusively evidenced by their execution of such
Debt Securities and Coupons. If the form of a series of Debt Securities or
Coupons (or any Global Note) is established in or pursuant to a Board Resolution
of the Company, a copy of such Board Resolution shall be delivered to the
Trustee, together with an Officers' Certificate setting forth the form of such
series, at or prior to the delivery of the Company Order contemplated by Section
3.03 for the authentication and delivery of such Debt Securities (or any such
Global Note) or Coupons. Any form of Debt Security, Coupon or Global Note
approved by or pursuant to a Board Resolution shall be reasonably acceptable as
to form to the Trustee, such acceptance to be evidenced by the Trustee's
authentication of the Debt Securities, Coupons or Global Notes in such form or
by a certificate signed by a Responsible Officer of the Trustee delivered to the
Company.
Unless otherwise specified as contemplated by Section 3.01, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities and Coupons.
Section 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
issued under the within mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By_________________________________
Authorized Officer
Section 2.03. Securities in Global Form.
-------------------------
If any Debt Security of a series is issuable in global form, the
Global Note so issued may provide that it shall represent the aggregate amount
of Outstanding Debt Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note.
Any instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.02.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution of the
Company and (subject to Section 3.03) set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of
Debt Securities);
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(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of such series pursuant to Sections 3.04, 3.05,
3.06, 11.06 or 13.07);
(3) the percentage of the principal amount at which the Debt
Securities will be issued and, if other than the principal amount thereof,
the portion of the principal amount thereof payable upon declaration of
acceleration of the Maturity thereof or the method by which such portion
shall be determined;
(4) the date or dates on which or periods during which the Debt
Securities of the series may be issued, and the date or dates (or the
method of determination thereof) on which the principal of (and premium, if
any, on) the Debt Securities of such series are or may be payable (which,
if so provided in such Board Resolution or supplemental indenture, may be
determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time);
(5) the rate or rates (or the method of determination thereof) at
which the Debt Securities of the series shall bear interest, if any, and
the dates from which such interest shall accrue (which, in either case or
both, if so provided in such Board Resolution or supplemental indenture,
may be determined by the Company from time to time and set forth in the
Debt Securities of the series issued from time to time); and the Interest
Payment Dates on which such interest shall be payable (or the method of
determination thereof), and, in the case of Registered Securities, the
Regular Record Dates for the interest payable on such Interest Payment
Dates and, in the case of Floating Rate Securities, the notice, if any, to
Holders regarding the determination of interest and the manner of giving
such notice;
(6) the place or places where the principal of (and premium, if any)
and interest on Debt Securities of the series shall be payable; the extent
to which, or the manner in which, any interest payable on any Global Note
on an Interest Payment Date will be paid, if other than in the manner
provided in Section 3.07; the extent, if any, to which the provisions of
the last sentence of Section 12.01 shall apply to the Debt Securities of
the series; and the manner in which any principal of, or premium, if any,
on, any Global Note will be paid, if other than as set forth elsewhere
herein;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of the
Holder and the period or periods within which or the dates on which, the
prices at which and the terms and conditions upon which Debt Securities of
the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
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(8) the right, if any, of the Company to redeem the Debt Securities
of such series, in whole or in part, at its option and the period or
periods within which, or the date or dates on which, the price or prices at
which, and the terms and conditions upon which Debt Securities of the
series may be redeemed, if any, in whole or in part, at the option of the
Company or otherwise;
(9) if the coin or Currency in which the Debt Securities shall be
issuable is in Dollars, the denominations of such Debt Securities if other
than denominations of $1,000 and any integral multiple thereof (except as
provided in Section 3.04);
(10) whether the Debt Securities of the series are to be issued as
Discount Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(11) provisions, if any, for the defeasance of the Debt Securities of
such series or certain of the Company's obligations with respect to the
Debt Securities;
(12) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto, whether
Bearer Securities of the series may be exchanged for Registered Securities
of the series, as provided in Section 3.05(b) or otherwise and the
circumstances under which and the place or places at which any such
exchanges, if permitted, may be made;
(13) whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued,
whether a procedure other than that set forth in Section 3.04(b) shall
apply and, if so, such other procedure, and if the procedure set forth in
Section 3.04(b) shall apply, the forms of certifications to be delivered
under such procedure;
(14) if other than Dollars, the Foreign Currency or Currencies or
Currency Unit in which Debt Securities of the series shall be denominated
or in which payment of the principal of (and/or premium, if any) and/or
interest on the Debt Securities of the series may be made, and the
particular provisions applicable thereto and, if applicable, the amount of
Debt Securities of the series which entitles the Holder of a Debt Security
of the series or its proxy to one vote for purposes of Section 9.06;
(15) if the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Debt
Securities are denominated or payable without such election, in addition to
or in lieu of the provisions of Section 3.10, the
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period or periods within which and the terms and conditions upon which,
such election may be made and the time and the manner of determining the
exchange rate or rates between the Currency or Currencies in which the Debt
Securities are denominated or payable without such election and the
Currency or Currencies in which the Debt Securities are to be paid if such
election is made;
(16) the date as of which any Debt Securities of the series shall be
dated, if other than as set forth in Section 3.03;
(17) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index, including, but not limited to, an index based on a
Currency or Currencies other than that in which the Debt Securities are
denominated or payable, or any other type of index, the manner in which
such amounts shall be determined;
(18) if the Debt Securities of the series are denominated or payable
in a Foreign Currency, any other terms concerning the payment of principal
of (and premium, if any) or any interest on such Debt Securities (including
the Currency or Currencies of payment thereof);
(19) the designation of the original Currency Determination Agent, if
any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(22) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to Debt Securities of the
series;
(23) if Bearer Securities of the series are to be issued, (x) whether
interest in respect of any portion of a temporary Debt Security in global
form (representing all of the Outstanding Bearer Securities of the series)
payable in respect of any Interest Payment Date prior to the exchange of
such temporary Debt Security for definitive Debt Securities of the series
shall be paid to any clearing organization with respect to the portion of
such temporary Debt Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which
any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date, (y) the terms upon which interests in such temporary Debt
Security in global form may be exchanged for interests in a permanent
Global Note or for definitive Debt Securities of the series and the terms
upon which interests in a permanent Global Note, if any, may be exchanged
for definitive Debt Securities of the series and (z) the cities in which
the Authorized Newspapers designated for the purposes of giving notices to
Holders are published;
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(24) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Notes and, in such case,
the U.S. Depositary or any Common Depositary for such Global Note or Notes;
and if the Debt Securities of the series are issuable only as Registered
Securities, the manner in which and the circumstances under which Global
Notes representing Debt Securities of the series may be exchanged for
Registered Securities in definitive form, if other than, or in addition to,
the manner and circumstances specified in Section 3.04(c);
(25) whether the Debt Securities of the series will be convertible
into shares of Common Stock, and if so, the terms and conditions, which may
be in addition to or in lieu of the provisions of Article Seventeen, upon
which such Debt Securities will be so convertible, including the Conversion
Price and the conversion period;
(26) the designation, if any, of the U.S. Depositary; and the
designation of any trustees (other than the Trustee), depositaries,
Authenticating Agents, Paying Agents, Security Registrars, or any other
agents with respect to the Debt Securities of such series;
(27) if the Debt Securities of such series are to be issuable in
definitive form (whether upon original issuance or upon exchange of a
temporary Debt Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions; and
(28) any other terms of the series (which other terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and Coupons, if any, shall be
substantially identical to all other Debt Securities of such series except as to
denomination, rate of interest, Stated Maturity and the date from which
interest, if any, shall accrue, which, as set forth above, may be determined by
the Company from time to time as to Debt Securities of a series if so provided
in or established pursuant to the authority granted in a Board Resolution or in
any such indenture supplemental hereto, and except as may otherwise be provided
in or pursuant to such Board Resolution and (subject to Section 3.03) set forth
in such Officers' Certificate, or in any such indenture supplemental hereto.
All Debt Securities of any one series need not be issued at the same time, and
unless otherwise provided, a series may be reopened for issuance of additional
Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in
or pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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Section 3.02. Denominations.
-------------
In the absence of any specification pursuant to Section 3.01 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
Section 3.03. Execution, Authentication, Delivery and Dating.
--------------------------------------- ------
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, a Vice Chairman, its
President, one of its Executive Vice Presidents, its Vice Presidents or its
Treasurer. The signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities and Coupons or did not hold such offices at the date of such
Debt Securities and Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities and Coupons and the Trustee in accordance with
the Company Order shall authenticate and deliver such Debt Securities and
Coupons; provided, however, that, in connection with its sale during the
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"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
-------- -------
Bearer Security (other than a temporary Global Note in bearer form) may be
delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Euro-clear Operator or to CEDEL a certificate substantially in the form
set forth in Exhibit A to this Indenture and if the Euro-clear Operator or CEDEL
has furnished the Trustee a certificate substantially in the form set forth in
Exhibit B. If all the Debt Securities of any one series are not to be issued at
one time and if a Board Resolution or supplemental indenture relating to such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Debt Securities and other matters which
are subject to variation, such as interest rate, Stated Maturity, date of
issuance and date from which interest, if any, shall accrue. If any Debt
Security shall be represented by a permanent Global Note, then, for purposes of
this Section and Section 3.04, the notation by the Common Depositary of a
beneficial owner's interest therein upon original issuance of such Debt Security
or upon exchange of a portion of a temporary Global Note shall be deemed to be
delivery in connection with the original issuance of such beneficial owner's
interest in such permanent Global Note. Except as permitted by Section 3.06 or
3.07, the Trustee shall not authenticate
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and deliver any Bearer Security unless all Coupons for interest then matured
have been detached and canceled.
The Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and Coupons, if any, of any series, (i) the
supplemental indenture or the Board Resolution by or pursuant to which the form
and terms of such Debt Securities and Coupons have been approved, (ii) the
certificates and opinions required pursuant to Section 1.02 and (iii) one or
more Opinions of Counsel substantially to the effect that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities and
Coupons, if any, conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Trustee to authenticate
and deliver such Debt Securities and Coupons, if any;
(2) the forms and terms of such Debt Securities and Coupons, if any,
have been established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt Securities and
Coupons, if any, have been established in a supplemental indenture, the
execution and delivery of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company, such
supplemental indenture has been duly executed and delivered by the Company
and, assuming due authorization, execution and delivery by the Trustee, is
a valid and binding obligation enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(4) the execution and delivery of such Debt Securities and Coupons,
if any, have been duly authorized by all necessary corporate action of the
Company and such Debt Securities and Coupons, if any, have been duly
executed by the Company and, assuming due authentication by the Trustee and
delivery by the Company, are valid and binding obligations enforceable
against the Company in accordance with their terms, entitled to the benefit
of the Indenture, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and subject to
such other exceptions as counsel shall reasonably request and as to which
the Trustee shall not reasonably object; and
(5) to the best of such counsel's knowledge, all governmental
consents, authorizations and approvals which are required for the execution
and delivery of the
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Indenture and the Debt Securities under all applicable New York laws, if
any, have been received other than such as may be required by the
securities or blue sky laws of the various states in connection with the
offer and sale of the Debt Securities.
For purposes of this opinion, such counsel may rely as to factual
matters upon certificates or written statements from officers or other
appropriate representatives of the Company or upon certificates of public
officials and such opinion may contain assumptions, limitations, exceptions and
restrictions which are reasonably satisfactory to the Trustee and its counsel.
The Trustee shall not be required to authenticate any Debt Securities
and Coupons, if any, if the issuance of such Debt Securities and Coupons, if
any, pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Debt Securities and this Indenture in a manner which is not
reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or permanent or
other definitive Bearer Security in global form) shall be dated as of the date
of original issuance of the first Debt Security of such series to be issued,
except as otherwise provided pursuant to Section 3.01 with respect to the Bearer
Securities of any series.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.08 together with a written statement (which need not
comply with Section 1.02) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary Debt Securities; Exchange of Temporary Global
-------------------------------------- ----------------
Notes for Definitive Bearer Securities.
- --------------------------------------
(a) Pending the preparation of definitive Registered Securities of
any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination for Registered Securities of such series, substantially of the
tenor of the definitive Registered Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions
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and other variations as the officers executing such Registered Securities may
determine, as conclusively evidenced by their execution of such Registered
Securities. Every such temporary Registered Security shall be executed by the
Company and shall be authenticated and delivered by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Registered Securities in lieu of which they are issued. In the
case of any series issuable as Bearer Securities, such temporary Debt Securities
may be in global form, representing such of the Outstanding Debt Securities of
such series as shall be specified therein.
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.05 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and like
terms and provisions; provided, however, that no definitive Bearer Security
-------- -------
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security (including a permanent
- -------- -------
Bearer Security in global form) shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
3.03. Until so exchanged, the temporary Registered Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 3.01, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or CEDEL, as the case may be, for
credit to the account of the Company (in the case of sales of Bearer Securities
by the Company directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or such other
accounts as the Company or the managing underwriter, respectively, may direct.
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On or after the date specified in or determined pursuant to the terms
of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes in definitive form without
Coupons. On or after the Exchange Date such temporary Global Note shall be
surrendered by the Common Depositary to the Trustee (or such other agent as is
specified for the purpose pursuant to Section 3.01), as the Company's agent for
such purpose, at such place specified outside the United States pursuant to
Section 3.01 and following such surrender, the Trustee (or such other agent)
shall (1) endorse the temporary Global Note to reflect the reduction of its
principal amount by an equal aggregate principal amount of such Debt Security,
(2) endorse the applicable permanent Global Note, if any, to reflect the initial
amount, or an increase in the amount of Debt Securities represented thereby, (3)
manually authenticate such definitive Debt Securities (including any permanent
Global Note), (4) deliver such definitive Debt Securities to the Holder thereof
or, if such definitive Debt Security is a permanent Global Note, deliver such
permanent Global Note to the Common Depositary to be held outside the United
States for the accounts of the Euro-clear Operator or CEDEL, as the case may be,
for credit to the respective accounts at Euro-clear Operator or CEDEL, as the
case may be, designated by or on behalf of the beneficial owners of such Debt
Securities (or to such other accounts as they may direct) and (5) redeliver such
temporary Global Note to the Common Depositary, unless such temporary Global
Note shall have been canceled in accordance with Section 3.08 hereof; provided,
--------
however, that, unless otherwise specified in such temporary Global Note, upon
- -------
such presentation by the Common Depositary, such temporary Global Note shall be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by the Euro-clear Operator, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
(including any permanent Global Note), and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL, as to the portion of such temporary
Global Note held for its account then to be exchanged for definitive Debt
Securities (including any permanent Global Note), each substantially in the form
set forth in Exhibit B to this Indenture. Each certificate substantially in the
form of Exhibit B hereto of the Euro-clear Operator or CEDEL, as the case may
be, shall be based on certificates of the account holders listed in the records
of the Euro-clear Operator or CEDEL, as the case may be, as being entitled to
all or any portion of the applicable temporary Global Note. An account holder
of the Euro-clear Operator or CEDEL, as the case may be, desiring to effect the
exchange of an interest in a temporary Global Note for an interest in definitive
Debt Securities (including any permanent Global Note) shall instruct the Euro-
clear Operator or CEDEL, as the case may be, to request such exchange on its
behalf and shall deliver to the Euro-clear Operator or CEDEL, as the case may
be, a certificate substantially in the form of Exhibit A hereto and dated no
earlier than 10 days prior to the Exchange Date. Until so exchanged, temporary
Global Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities (including any permanent Global Note) of
the same series authenticated and delivered hereunder, except as to payment of
interest, if any.
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The delivery to the Company, its agent or the Trustee by the Euro-
clear Operator or CEDEL of any certificate substantially in the form of Exhibit
B hereto may be relied upon by the Company, its agent and the Trustee as
conclusive evidence that a corresponding certificate or certificates has or have
been delivered to the Euro-clear Operator or CEDEL, as the case may be, pursuant
to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee (or such other agent as may be specified as the Company's agent for such
purpose pursuant to Section 3.01) definitive Debt Securities in an aggregate
principal amount equal to the principal amount of such temporary Global Note,
executed by the Company. At any time on or after the Exchange Date, upon 30
days' notice to the Trustee (or such other agent as may be specified as the
Company's agent for such purpose pursuant to Section 3.01) by the Euro-clear
Operator or CEDEL, as the case may be, acting at the request of or on behalf of
the beneficial owner, a Debt Security represented by a temporary Global Note or
a permanent Global Note, as the case may be, may be exchanged, in whole or from
time to time in part, for definitive Debt Securities without charge (except as
provided in Section 3.05) and the Trustee (or such agent) shall authenticate and
deliver, in exchange for each portion of such temporary Global Note or such
permanent Global Note, an equal aggregate principal amount of definitive Debt
Securities of the same series of authorized denominations and of a like Stated
Maturity and with like terms and conditions, as the portion of such temporary
Global Note or such permanent Global Note to be exchanged, which, unless the
Debt Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as contemplated by Section 3.01, shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; provided, however, that definitive
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Bearer Securities shall be delivered in exchange for a portion of the temporary
Global Note or the permanent Global Note only in compliance with the
requirements of the second preceding paragraph. On or prior to the forty-fifth
day following receipt by the Trustee (and such agent as may be specified as the
Company's agent for such purpose pursuant to Section 3.01) of such notice with
respect to a Debt Security, or, if such day is not a Business Day, the next
succeeding Business Day, the temporary Global Note or the permanent Global Note,
as the case may be, shall be surrendered by the Common Depositary to the Trustee
(or such other agent as may be specified as the Company's agent for such purpose
pursuant to Section 3.01), as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Debt Securities
without charge following such surrender, upon the request of the Euro-clear
Operator or CEDEL, as the case may be, and the Trustee (or such agent) shall (1)
endorse the applicable temporary Global Note or the permanent Global Note to
reflect the reduction of its principal amount by the aggregate principal amount
of such Debt Security, (2) cause the terms of such Debt Security and Coupons, if
any, to be entered on a definitive Debt Security, (3) manually authenticate such
definitive Debt Security, and (4) if a Bearer Security is to be delivered,
deliver such definitive Debt Security outside the United States to the Euro-
clear Operator or CEDEL, as the case may be, for or on behalf of the beneficial
owner thereof, in exchange for a portion of such temporary Global Note or the
permanent Global Note.
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Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge (except as
provided in Section 3.05) to the beneficial owners of such temporary Global Note
or the permanent Global Note, except that a Person receiving definitive Debt
Securities must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive Debt
Securities in person at the offices of the Euro-clear Operator or CEDEL.
Definitive Debt Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Note or the permanent Global Note shall be
delivered only outside the United States. Notwithstanding the foregoing, in the
event of redemption or acceleration of all or any part of a temporary Global
Note prior to the Exchange Date, a permanent Global Note or definitive Bearer
Securities, as the case may be, will not be issuable in respect of such
temporary Global Note or such portion thereof, and payment thereon will instead
be made as provided in such temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global
Note or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.01, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to the Euro-
clear Operator or CEDEL on such Interest Payment Date upon delivery by the Euro-
clear Operator or CEDEL to the Trustee of a certificate or certificates
substantially in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary Global Note on such Interest Payment Date and who have each delivered
to the Euro-clear Operator or CEDEL, as the case may be, a certificate
substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this Section
3.04.
Notwithstanding the provisions of Article Eleven of this Indenture,
with respect to Exhibits A and B to this Indenture, the Company may, in its
discretion and if required or desirable under applicable law, substitute one or
more other forms of such Exhibits for such Exhibits, eliminate the requirement
that any or all certificates be provided, or change the time that any
certificate may be required, provided that such substitute form or forms or
notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee (and any agent of the Company
appointed pursuant to Section 3.01 and referred to above) with a Company Request
and such form or forms, elimination or change is reasonably acceptable to the
Trustee (and any such agent). The Trustee shall have no responsibility for
determining whether any substitute form or forms, elimination or change is
permitted by or is
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in compliance with applicable law and shall have no liability to the Company or
any Holder therefor.
(c) If the Company shall establish pursuant to Section 3.01 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.03 and the Company Order with respect to
such series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially to
the following effect: "This Debt Security 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 and until this Debt Security is exchanged in whole
or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.05,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. 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 U.S.
Depositary for such series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor U.S. Depositary
with respect to the Debt Securities of such series. If a successor U.S.
Depositary for the Debt Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Registered Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Note or Notes representing such series in
exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery
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of definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form and in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
If the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If specified by the Company pursuant to Section 3.01 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge (except as provided in Section 3.05):
(i) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of any authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be canceled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. Registration, Transfer and Exchange.
-----------------------------------
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the
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Company shall provide for the registration of Registered Securities and of
transfers and exchanges of Registered Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Registered
Securities and registering transfers and exchanges of Registered Securities as
herein provided; provided, however, that the Company may appoint co-Security
-------- -------
Registrars.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.04 and this Section 3.05, at
the option of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 3.01, the
provisions of this Section 3.05(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.01 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that except as otherwise provided in Section 12.03, interest
- -------- -------
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and of a like Stated Maturity
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and with like terms and conditions after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the Coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.01, in no
event may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered for such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any registration of transfer or
exchange of Debt Securities except as provided in Section 3.04(b) or 3.06. The
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Debt Securities, other than those expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to the Holders.
The Company shall not be required (i) to register, register the
transfer of or exchange Debt Securities of any series during a period beginning
at the opening of business 15 days before the day of the transmission of a
notice of redemption of Debt Securities of such series selected for redemption
under Section 13.03 and ending at the close of business on
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the day of such transmission, or (ii) to register, register the transfer of or
exchange any Debt Security so selected for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.
------------------------------------- ---------------
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee, or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Debt Security or any Coupon, and there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them and any agent of any of them harmless, and neither the Company nor the
Trustee receives notice that such Debt Security or Coupon has been acquired by a
bona fide purchaser, then the Company shall execute and upon Company Request the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Debt Security or in exchange for the Coupon
Security to which such mutilated, destroyed, lost or stolen Coupon appertained,
a new Debt Security of the same series of like Stated Maturity and with like
terms and conditions and like principal amount, bearing a number not
contemporaneously Outstanding, and, in the case of a Coupon Security, with such
Coupons attached thereto that neither gain nor loss in interest shall result
from such exchange or substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; provided, however,
-------- -------
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.03, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01 or except as otherwise provided in
this Section 3.06, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Debt 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 respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series issued pursuant to
this Section shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security or
Coupon shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Debt Securities or Coupons of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any registration of transfer or exchange subsequent to the Regular Record
Date. Unless otherwise specified as contemplated by Section 3.01 with respect
to the Debt Securities of any series, payment of interest on Registered
Securities shall be made at the place or places specified pursuant to Section
3.01 or, at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register
or, if provided pursuant to Section 3.01, by wire transfer to an account
designated by the Registered Holder. Such wire instructions are to be received
by the Paying Agent by the Regular Record Date.
(b) Interest on any Coupon Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall, except
as otherwise provided in Section 12.03, be paid to the Holder of the Coupon
which has matured on such Interest Payment Date upon surrender of such Coupon on
such Interest Payment Date at an office or agency of the Company in a Place of
Payment located outside the United States specified pursuant to Section 3.01.
Interest on any Bearer Security (other than a Coupon Security) which
is payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Holder of the Bearer Security upon presentation of
such Bearer Security and notation thereon on such Interest Payment Date at an
office or agency of the Company in a Place of Payment located outside the United
States specified pursuant to Section 3.01.
Unless otherwise specified pursuant to Section 3.01, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, payment on
such Bearer Security or Coupon will be made by check or, if agreeable to the
Trustee, by wire transfer to a Dollar account maintained by such Holder outside
the United States. If such payment at the offices of all Paying Agents outside
the United States becomes illegal or is effectively precluded because of the
imposition of exchange controls or similar restrictions on the full payment or
receipt of such amounts in Dollars, the Company will appoint an office or agent
in the United States at which such payment may be made. Unless otherwise
specified pursuant to Section 3.01, at the direction of the Holder of any Bearer
Security or Coupon payable in a Foreign Currency, payment on such Bearer
Security or Coupon will be made by a check drawn on a bank outside the United
States or by wire transfer to an appropriate account maintained by such Holder
outside the United States. Except as provided in this
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paragraph, no payment on any Bearer Security or Coupon will be made by mail to
an address in the United States or by wire transfer to an account in the United
States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names such Registered 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, at least 25
days prior to the date of the proposed payment, notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Registered Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money in
the Currency or Currency Unit in which the Debt Securities of such series
are payable (except as otherwise specified pursuant to Section 3.01 or
3.10) 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 is 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 date shall be not more than 20 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to the
Holders of such Registered Securities at their addresses as they appear 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
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to
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the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.05
not more than 20 days and not less than 10 days prior to the date of the
proposed payment.
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
(f) In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Registered Security (or one or more predecessor
Registered Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Registered Security which is converted,
interest whose Stated Maturity is after the date of conversion of such
Registered Security shall not be payable.
Section 3.08. Cancellation.
------------
Unless otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, registration of transfer, exchange or credit against any sinking
fund and all Coupons surrendered for payment or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee. All
Registered Securities and matured Coupons so delivered shall be promptly
canceled by the Trustee. All Bearer Securities and unmatured Coupons so
delivered shall be held by the Trustee and, upon instruction by Company Order,
shall be canceled or held for reissuance. Bearer Securities and unmatured
Coupons held for reissuance may be reissued only in exchange for Bearer
Securities of the same series and of like Stated Maturity and with like terms
and conditions pursuant to Section 3.05 or in replacement of mutilated, lost,
stolen or destroyed Bearer Securities of the same series and of like Stated
Maturity and with like terms and conditions or the related Coupons pursuant to
Section 3.06. All Bearer Securities and unmatured Coupons held by the Trustee
pending such cancellation or reissuance shall be deemed to be delivered for
cancellation for all purposes of this Indenture and the Debt
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Securities. The Company may at any time deliver to the Trustee for cancellation
any Debt Securities or Coupons previously authenticated and delivered hereunder
which the Company has acquired in any manner whatsoever, and the Company may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Debt Securities previously authenticated hereunder which the
Company has not issued, and all Debt Securities or Coupons so delivered shall be
promptly canceled by the Trustee. No Debt Securities or Coupons shall be
authenticated in lieu of or in exchange for any Debt Securities or Coupons
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Debt Securities and Coupons held by the Trustee shall
be delivered to the Company upon Company Request. The acquisition of any Debt
Securities or Coupons by the Company shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until such Debt
Securities or Coupons are surrendered to the Trustee for cancellation. In the
case of any temporary Global Note which shall be canceled if the entire
aggregate principal amount of the Debt Securities represented thereby has been
exchanged, the Trustee shall deliver to the Company a certificate of
cancellation stating that all certificates required pursuant to Section 3.04
hereof and substantially in the form of Exhibit B hereto, to be given by the
Euro-clear Operator or CEDEL, have been duly presented to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be.
Section 3.09. Computation of Interest.
-----------------------
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.10. Currency of Payments in Respect of Debt Securities.
--------------------------------------- ----------
(a) Except as otherwise specified pursuant to Section 3.01 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided for in paragraph (c) below, except as
provided in paragraph (e) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.01 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form established pursuant to Section 3.01,
not later than the close of business on the Election Date immediately preceding
the applicable payment date. If a Holder so elects to receive such payments in
any such Currency, such
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election will remain in effect for such Holder until changed by such Holder by
written notice to the Trustee (but any such change must be made not later than
the close of business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such payment date and
no such change or election may be made with respect to payments to be made on
any Registered Security of such series with respect to which an Event of Default
has occurred or notice of redemption has been given by the Company pursuant to
Article Thirteen). Any Holder of any such Registered Security who shall not
have delivered any such election to the Trustee by the close of business on the
applicable Election Date will be paid the amount due on the applicable payment
date in the relevant Currency as provided in paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.01, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying, in the Currency in which each series of
the Registered Securities is payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts so payable in respect of
the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. If the election referred to in paragraph (c)
above has been provided for pursuant to Section 3.01 and if at least one Holder
has made such election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate Officer's
Certificate in respect of the Currency payments to be made on such payment date.
The Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (c) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "Valuation Date") immediately preceding
each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other Currency Unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency Unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency Unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency Unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Currency Determination Agent in the manner provided in
paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a
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Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election. If a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (e) of
this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Currency Determination Agent and subject to the provisions of paragraph
(i) below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(i) For purposes of this Section 3.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency Unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were represented in
the relevant Currency Unit, including, but not limited to, the ECU, on the
Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single Currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single Currency, and such
amount shall thereafter be a Specified Amount and such single Currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more Currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or more
Currencies with appropriate Dollar equivalents at the Market Exchange Rate on
the date of such replacement equal to the Dollar equivalent of the Specified
Amount of such former Component Currency at the Market Exchange Rate on such
date, and such amounts shall thereafter be Specified Amounts and such Currencies
shall thereafter be Component Currencies. If after the Conversion Date of the
relevant Currency Unit, including but not limited to, the ECU, a Conversion
Event (other than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of
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such Currency Unit, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Valuation Date of such
Component Currency.
"Election Date" shall mean the record date with respect to any payment
date, and with respect to the Maturity shall mean the record date (if within 16
or fewer days prior to the Maturity) immediately preceding the Maturity, and
with respect to any series of Debt Securities whose record date immediately
preceding the Maturity is more than 16 days prior to the Maturity or any series
of Debt Securities for which no record dates are provided with respect to
interest payments, shall mean the date which is 16 days prior to the Maturity.
(j) All decisions and determinations of the Currency Determination
Agent, if any, or the Trustee regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a Foreign
Currency, the Company, after learning thereof, will immediately give written
notice thereof to the Trustee (and the Trustee will promptly thereafter give
notice in the manner provided in Section 1.05 to the Holders) specifying the
Conversion Date. In the event of a Conversion Event with respect to the ECU or
any other Currency Unit in which Debt Securities are denominated or payable, the
Company, after learning thereof, will immediately give written notice thereof to
the Trustee (and the Trustee will promptly thereafter give written notice in the
manner provided in Section 1.05 to the Holders) specifying the Conversion Date
and the Specified Amount of each Component Currency on the Conversion Date. In
the event of any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Company, after learning thereof, will
similarly give prompt written notice to the Trustee. The Trustee shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Currency Determination Agent, if any and may,
notwithstanding any other provision of this Indenture, conclusively assume that
no Conversion Event or other event of which it is entitled to notice hereunder
has occurred unless it actually receives written notice thereof as provided
herein, and shall not otherwise have any duty or obligation to determine such
information independently.
(k) For purposes of any provision of this Indenture where the Holders
of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Debt Securities denominated in a Foreign Currency will be the amount in Dollars
based upon the Market Exchange Rate for Debt Securities of such series, as of
the date for determining whether the Holders entitled to perform such Act have
performed it, or as of the
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Business Day immediately prior to the date of such decision or determination by
the Trustee, as the case may be.
Section 3.11. Judgments.
---------
If for the purpose of obtaining a judgment in any court with respect
to any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under such Debt Security, then such conversion shall be made at
the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such
judgment, conversion shall be made on a date other than the date payment is made
and there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other Currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Debt Security. Any amount due from the
Company under this Section 3.11 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Debt Security. In no event, however, shall the
Company be required to pay more in the Currency or Currency Unit due hereunder
or under such Debt Security at the Market Exchange Rate as in effect when
payment is made than the amount of Currency stated to be due hereunder or under
such Debt Security so that in any event the Company's obligations hereunder or
under such Debt Security will be effectively maintained as obligations in such
Currency, and the Company shall be entitled to withhold (or be reimbursed for,
as the case may be) any excess of the amount actually realized upon any such
conversion over the amount due and payable on the date of payment or
distribution.
Section 3.12. Exchange Upon Default.
---------------------
If default is made in the payments referred to in Section 12.01, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the bearer of such permanent Global Note duly executed and
authenticated definitive Debt Securities with the same issue date and maturity
date as set out in such permanent Global Note.
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Section 3.13. CUSIP Numbers.
-------------
The Company in issuing the Debt Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
--------
may state that no representation is made as to the correctness or accuracy of
such numbers either as printed on the Debt Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange or conversion of such Debt
Securities herein expressly provided for or expressly provided in the terms of
the Debt Securities of such series pursuant to Section 3.01, and rights to
receive payments of principal (and premium, if any) and interest on such Debt
Securities) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such series
theretofore authenticated and delivered (other than (i) Debt Securities and
Coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not
required or has been waived under Section 3.05, (iii) Coupons appertaining
to Bearer Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
13.06, and (iv) Debt Securities and Coupons of such series 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 12.04) have been
delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation,
(i) have become due and payable, or
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(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) of this subclause (B),
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in which
such Debt Securities are denominated (except as otherwise provided pursuant
to Section 3.01 or 3.10) sufficient to pay and discharge the entire
indebtedness on such Debt Securities for principal (and premium, if any)
and interest to the date of such deposit (in the case of Debt Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be; provided, however, in the event a petition for
-------- -------
relief under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or state bankruptcy, insolvency or other
similar law, is filed with respect to the Company within 91 days after the
deposit and the Trustee is required to return the deposited money to the
Company, the obligations of the Company under this Indenture with respect
to such Debt Securities shall not be deemed terminated or discharged;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel or
a ruling by the Internal Revenue Service to the effect that such deposit
and discharge will not cause Holders of the Debt Securities of the series
to recognize income, gain or loss for Federal income tax purposes.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Company to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.01, and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in subclause (B) of
clause 1 of this Section has been made, (x) the Holder of a Debt Security is
entitled to, and does, elect pursuant to Section 3.10(c), to receive payment in
a Currency other than that in which such deposit was made, or (y) if a
Conversion Event occurs with respect to the Currency in which such deposit was
made or elected to be received by the Holder pursuant to
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Section 3.10(c), then the indebtedness represented by such Debt Security shall
be fully discharged to the extent that such deposit made with respect to such
Debt Security shall be converted into the Currency in which such payment is
made.
Section 4.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 12.04, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
-----------------
"Event of Default" wherever used herein with respect to Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Debt Security or
any payment with respect to the Coupons, if any, of such series when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (and premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series; or
(4) default 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 any covenant or warranty which
expressly has been included in this Indenture solely for the benefit of
Debt Securities of a series other than such series), and continuance of
such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Debt Securities
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of such series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or State bankruptcy, insolvency or other
similar law, or a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, 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
(6) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, or
the consent by it to the entry of an order for relief in an involuntary
case under any such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of its creditors, or the admission by it
in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Debt Securities of any series
at that time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount), plus accrued and unpaid interest (and premium, if
any), shall become immediately due and payable. Upon payment of such amount in
the Currency in which such Debt Securities are denominated (except as otherwise
provided pursuant to Section 3.01 or 3.10), all obligations of the Company in
respect of the payment of principal of the Debt Securities of such series shall
terminate.
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At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Debt Securities are denominated (except as otherwise
provided pursuant to Section 3.01 or 3.10) sufficient to pay
(A) all overdue installments of interest on all Debt Securities or
all overdue payments with respect to any Coupons of such series,
(B) the principal of (and premium, if any, on) any Debt Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest on each Debt Security of
such series or upon overdue payments on any Coupons of such
series at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable fees, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07; provided, however, that all sums
-------- -------
payable under this clause (D) shall be paid in Dollars;
and
(2) All Events of Default with respect to Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of
such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission and annulment shall affect any subsequent default or impair
any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if:
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(1) default is made in the payment of any installment of interest on
any Debt Security or any payment with respect to any Coupons when such
interest or payment becomes due and payable and such default continues for
a period of 30 days,
(2) default is made in the payment of principal of (or premium, if
any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due pursuant to the
terms of the Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, (i) the amount then due and
payable on such Debt Securities or matured Coupons for the principal (and
premium, if any) and interest, if any, (ii) to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate,
and (iii) such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable fees, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 6.07.
If the Company fails to pay such amount 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 Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities and
Coupons 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 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
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Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if the Debt Securities of such series are Discount Securities, such portion
of the principal amount as may be due and payable with respect to such
series pursuant to a declaration in accordance with Section 5.02) (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities and Coupons of such series and to file such other papers or
documents and take such other actions, including participating as a member,
voting or otherwise, of any committee of creditors appointed in the matter,
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable fees, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 6.07) and of the Holders of such Debt Securities
and Coupons 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, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
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 such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
-----------------------------------------------------
Securities.
- ----------
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under
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Section 6.07, be for the ratable benefit of the Holders of the Debt Securities
or Coupons in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons of any
series in respect of which money has been collected 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
6.07.
SECOND: Subject to Article Sixteen, to the payment of the amounts
then due and unpaid for principal of (and premium, if any) and interest on
the Debt Securities or Coupons of such series, in respect of which or for
the benefit of which such money has been collected ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Debt Securities or Coupons for principal (and premium, if
any) and interest, respectively; and
THIRD: Subject to Article Sixteen, the balance, if any, to the Person
or Persons entitled thereto.
Section 5.07. Limitation on Suits.
-------------------
No Holder of any Debt Security or Coupon 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
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
5.07, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
Section 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or of any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.07) interest on such Debt Security or Coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
Coupon (or, in the case of redemption, on the Redemption Date) and to convert
any Debt Security that is convertible and to institute suit for the enforcement
of any such payment and interest thereon and of such right to convert, and such
right shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder 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 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise expressly provided elsewhere in this Indenture, 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
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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 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder 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 any
acquiescence therein. Every right and remedy given by this Indenture 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 5.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 6.01, 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 Responsible Officers of the
Trustee, determine that the proceeding so directed would involve the
Trustee in personal liability or be unjustly prejudicial to the Holders of
Debt Securities of such series not joining in any such direction;
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(4) this provision shall not affect the rights of the Trustee set
forth in Section 6.01(c)(4).
Section 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series waive, by notice to the Trustee and the
Company, any past default or Event of Default hereunder with respect to such
series and its consequences, except a default
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(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the Debt
Securities of such series, or
(2) in respect of a covenant or provision hereof which pursuant to
Article Eleven cannot be modified or amended without the consent of the
Holder of each Outstanding Debt 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 Debt Securities of such series under this Indenture, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee 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 Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security or Coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on such Debt Security or the
payment of any Coupon on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or Coupon (or, in the case of redemption, on or
after the Redemption Date) or for the enforcement of the right to convert any
Debt Security of any series as may be provided in accordance with Section 3.01.
Section 5.15. 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.
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ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt Securities of
any series has occurred and is continuing, the Trustee shall, with respect to
the Debt Securities of such series, exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(c) Subject to Section 6.04, no provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Debt Securities of
any series in good faith in accordance with the written direction of the
Holders of a majority in principal amount of the Outstanding Debt
Securities of such 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;
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(4) the Trustee shall not be required 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; and
(5) the Trustee shall not be charged with knowledge of any default or
Event of Default or any other act or circumstance upon the occurrence of
which the Trustee may be required to take action unless a Responsible
Officer of the Trustee obtains actual knowledge of such default, Event of
Default, act or circumstance or unless written notice referencing this
Indenture or the Debt Securities is received by the Trustee at the
Corporate Trust Office.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities or Coupons, if any, of any series, the Trustee shall
give notice to all Holders of Debt Securities and Coupons of such series of such
default hereunder actually known to the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
-------- -------
in the payment of the principal of (or premium, if any) or interest on any Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Debt Securities and of Coupons of
such series; and provided, further, that in the case of any default of the
-------- -------
character specified in Section 5.01(4) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Debt Securities of such series.
Notice given pursuant to this Section 6.02 with respect to Registered
Securities shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have within
two years preceding such transmission, filed their names and addresses with
the Trustee for such series for that purpose;
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(3) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) of this Indenture; and
(4) to the Company.
Notice given pursuant to this Section 6.02 with respect to Bearer
Securities shall be transmitted in the manner set forth in Section 1.05.
Section 6.03. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 6.01:
(a) the Trustee conclusively may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors of the Company shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
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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
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
Section 6.04. Not Responsible for Recitals or Issuance of Debt
------------------------------------------------
Securities.
- ----------
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities or Coupons, if any, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof. The Trustee assumes no
responsibility for the accuracy of any statements in any registration statement
relating to the Debt Securities.
Section 6.05. May Hold Debt Securities.
------------------------
The Trustee, 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 Debt Securities or Coupons, and, subject to Sections 6.08
and 6.13, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
-------------------
Subject to the provisions of Sections 12.04 and 15.04, money in any
Currency held by the Trustee or any Paying Agent in trust hereunder need not be
segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
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Section 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time such compensation in
Dollars as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in connection
with the administration of the trusts herein set forth (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it harmless
against, any loss, liability, damage, lien or expense, including taxes
(other than taxes based upon, measured by or determined by income of the
Trustee), incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust or
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section and in addition to its rights under Section 5.06, the Trustee
shall have a claim prior to the Debt Securities and Coupons, if any, upon all
property and funds held or collected by the Trustee as such, except funds held
in trust pursuant to Section 15.03 hereof or for the payment of amounts due on
particular Debt Securities and Coupons. The fees and expenses incurred by the
Trustee in connection with any bankruptcy of the Company shall constitute fees
and expenses of administration; provided, however, that this shall not affect
-------- -------
the Trustee's rights as set forth in the preceding sentence or Section 5.06.
The provisions of this Section shall survive the termination of this Indenture.
Section 6.08. Disqualification; Conflicting Interests.
---------------------------------------
The Trustee shall at all times satisfy the requirements of Sections
310(a)(1), (2) and (5) of the Trust Indenture Act. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. The Trustee shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act.
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Section 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee 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 $50,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority and eligible to act as Trustee hereunder in
compliance with Section 310(a)(1) of the Trust Indenture Act. 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 shall serve as Trustee upon any Debt Securities.
Section 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series, and a successor Trustee appointed, by Act of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series, delivered to the Trustee and to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after such removal, the removed Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08(a) with
respect to the Debt Securities of any series after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a Debt
Security of such series for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to the Debt Securities of any series and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Debt Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.05 to the
Holders of Debt Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Debt Securities of such series and
the address of its corporate trust office.
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Section 6.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, but, on the
written request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any 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 other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor Trustee relates, but,
on request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such
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successor Trustee all such rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
- --------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided 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 Debt Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act.
Section 6.14. Appointment of Authenticating Agent.
-----------------------------------
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities
of each such series authenticated by such Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in
this Indenture to the authentication and delivery of Debt Securities of any
series by the Trustee for such series or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee for such series by an Authenticating Agent for
such series and a Certificate of Authentication executed on behalf of such
Trustee
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by such Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State authority. 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 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 any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more or all series of Debt Securities, the Trustee for such series shall
upon Company Request appoint a successor Authenticating Agent, and the Company
shall provide notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section 1.05. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. The Company agrees to pay to the Authenticating Agent for any
series of Debt Securities from time to time reasonable compensation for its
services under this Section 6.14. The Authenticating Agent for the Debt
Securities of any series shall have no responsibility or liability for any
action taken by it as such in good faith and without negligence at the direction
of the Trustee for such series, and the Trustee shall not be liable or
responsible for the acts or omissions of any Authenticating Agent appointed upon
a Company Request.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Debt Securities of the series designated therein
referred to in the within mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By:___________________________
As Authenticating Agent
By:___________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.
- -------
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.01 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Regular Record Date (or such semi-annual dates, as the case
may be); and
(b) at such other times as the Trustee may request in writing, within
15 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
- -------- -------
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
-------- -------
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
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Section 7.02. Preservation of Information; Communication to Holders.
-----------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.01
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.03.
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished, destroy any information
received by it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest Payment Date, a
list containing the names and addresses of the Holders obtained from such
information since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was compiled from information received
by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.03(c)(2).
(b) If three or more Holders (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 Debt Security 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 Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt 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
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders
of Debt Securities of such series or of all Debt 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 7.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon written request of such applicants,
mail to the Holders of Debt Securities of such series or all Holders, as the
case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.02(a), 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
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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 Debt
Securities of such series or all Holders, 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 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.
(c) Every Holder of Debt 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 in accordance with
Section 7.02(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
of any material pursuant to a request made under Section 7.02(b).
Section 7.03. Reports by Trustee.
------------------
Within 60 days after May 15 of each year, beginning with May 15, 1998,
the Trustee shall, if required by law, mail to each Holder a brief report dated
as of such date that complies with Section 313(a) of the Trust Indenture Act.
The Trustee also shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act. The Company shall promptly notify the Trustee in writing if the
Debt Securities of any series become listed on any stock exchange or automated
quotation system. A copy of each report shall, at the time of its mailing to
the Holders, be mailed to the Company and filed with the Commission and each
stock exchange, if any, on which the Debt Securities of any series are listed.
Section 7.04. Reports by Company.
------------------
The Company shall:
(1) 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 the Company shall file
with the Trustee and the Commission, in accordance with rules and
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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
required from time to time in such rules and regulations;
(2) 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
(3) transmit to all Holders of Debt Securities, in the manner and to
the extent provided in Section 7.03, 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 (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Company's compliance with any
of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.
---------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article
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Nine, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Holders.
Section 8.02. Proof of Ownership; Proof of Execution of Instruments
-----------------------------------------------------
by Holder.
- ---------
The ownership of Registered Securities of any series shall be proved
by the Security Register for such series or by a certificate of the Security
Registrar for such series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state that on the date
thereof a Bearer Security bearing a specified identifying number or other mark
was deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 3.01, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
canceled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of
the execution of a writing appointing an agent or proxy and of the execution of
any instrument by a Holder or his agent or proxy shall be sufficient and
conclusive in favor of the Trustee and the Company if made in the following
manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public, or other
officer authorized to take acknowledgments of deeds, that the person executing
such instrument acknowledged to him the execution thereof, or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.06.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
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Section 8.03. Persons Deemed Owners.
---------------------
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 3.07) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company nor the
Trustee, nor any agent of either of them, shall be affected by notice to the
contrary. The Company and the Trustee, and any agent of either of them, may
treat the Holder of any Bearer Security or of any Coupon as the absolute owner
of such Bearer Security or Coupon for the purposes of receiving payment thereof
or on account thereof and for all other purposes whatsoever, whether or not such
Bearer Security or Coupon be overdue, and neither the Company nor the Trustee,
nor any agent of either of them, shall be affected by notice to the contrary.
All payments made to any Holder, or upon his order, shall be valid, and, to the
extent of the sum or sums paid, effectual to satisfy and discharge the liability
for moneys payable upon such Debt Security or Coupon.
Section 8.04. Revocation of Consents; Future Holders Bound.
--------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.02,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and, subject to the provisions of Section 5.08, upon
all future Holders of such Debt Security and all past, present and future
Holders of Coupons, if any, appertaining thereto and of any Debt Securities and
Coupons issued on transfer or in lieu thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security or Coupons or such other Debt Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings.
--------------------
A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Article Nine for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any
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default hereunder and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the provisions of
Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case
may be, under any other provision of this Indenture or under applicable
law.
Section 9.02. Call of Meetings by Trustee.
---------------------------
The Trustee for any series may at any time call a meeting of Holders
of such series to take any action specified in Section 9.01, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders 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 to Holders of such series in the
manner and to the extent provided in Section 1.05. Such notice shall be given
not less than 20 days nor more than 90 days prior to the date fixed for the
meeting.
Section 9.03. Call of Meetings by Company or Holders.
--------------------------------------
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Debt Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.01, by giving notice thereof as provided in Section
9.02.
Section 9.04. Qualifications for Voting.
-------------------------
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the
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Trustee for the series with respect to which such meeting is being held and its
counsel and any representatives of the Company and its counsel.
Section 9.05. Regulations.
-----------
Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.03, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
-------- -------
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly designating
him as the person to vote on behalf of Holders of Debt Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
Section 9.06. Voting.
------
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be taken
and there shall be attached to said
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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 transmitted as provided in Section 9.02. The record shall show the
serial numbers of the Debt Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. No Delay of Rights by Meeting.
-----------------------------
Nothing contained in this Article Nine shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Debt Securities of any series.
ARTICLE TEN
INTENTIONALLY OMITTED
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without prior notice to or the consent of any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Corporation to the rights
of the Company and the assumption by such successor of the covenants and
other obligations of the Company herein and in the Debt Securities and
Coupons, if any, contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities and the Coupons, if any,
appertaining thereto (and if such covenants are to be for the benefit of
less than all series, 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
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(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such
Events of Default are expressly being included solely to be applicable to
such series); or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities of any series in bearer form, registrable or not registrable,
and with or without Coupons, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to permit the issuance of Debt Securities of any series in
uncertificated form, provided that any such action shall not adversely
--------
affect the interests of the Holders of Debt Securities of any series or any
related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Outstanding Debt Security or Coupon of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision and as to which such supplemental indenture
would apply; or
(6) to secure the Debt Securities; or
(7) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four or Fifteen,
provided that any such action shall not adversely affect the interests of
--------
the Holders of Debt Securities of such series or any other series of Debt
Securities or any related Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of Debt
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 the requirements
of Section 6.11; or
(10) to make provision with respect to the conversion rights of
Holders of Debt Securities of any series pursuant to the requirements of
Section 17.04, unless otherwise provided pursuant to Section 3.01; or
(11) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, to eliminate any conflict between the terms of this Indenture or
the Debt Securities and the Trust
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Indenture Act or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture; provided such other provisions shall not
--------
adversely affect the interests of the Holders of Outstanding Debt
Securities or Coupons, if any, of any series created prior to the execution
of such supplemental indenture in any material respect.
Section 11.02. Supplemental Indentures With Consent of
---------------------------------------
Holders.
- -------
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities or Coupons, if any; provided, however, that no such supplemental
-------- -------
indenture shall, without the consent of the Holder of each Outstanding Debt
Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or installment of
interest, if any, on, any Debt Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any
payment to be made with respect to any Coupon, or change the Currency or
Currencies in which the principal of (and premium, if any) or interest on
such Debt Security is denominated or payable, or reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.02, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous provisions for
any Debt Security, or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or limit the
obligation of the Company to maintain a paying agency outside the United
States for payment on Bearer Securities as provided in Section 12.03, or
adversely affect the right to convert any Debt Security into shares of
Common Stock of the Company as may be provided pursuant to Section 3.01; or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults or Events of Default hereunder and their consequences provided for
in this Indenture; or
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(3) modify any of the provisions of this Section, Section 5.13 or
Section 12.09, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security of each
series affected thereby; provided, however, that this clause shall not be
-------- -------
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 12.09, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 11.01(7); or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Debt Securities in a manner adverse to the Holders.
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.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities and Coupons, if any, of any other
series.
Section 11.03. 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 6.01) shall be fully protected in relying upon, in
addition to the documents required by Section 1.02, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which adversely affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise in a material
way.
Section 11.04. 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 Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
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Section 11.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 11.06. Reference in Debt Securities to Supplemental
--------------------------------------------
Indentures.
- ----------
Debt Securities and Coupons, if any, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons
of any series 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 Debt Securities and Coupons of such series.
Section 11.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the appropriate
Trustee of any supplemental indenture pursuant to Section 11.02, the Company
shall transmit, in the manner and to the extent provided in Section 1.05, to all
Holders of any series of the Debt Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
Section 11.08. Effect on Senior Indebtedness.
-----------------------------
No supplemental indenture shall adversely affect the rights of any
holder of Senior Indebtedness under Article Sixteen without the consent of such
holder.
ARTICLE TWELVE
COVENANTS
Section 12.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Debt Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.01, the interest, if any, due in respect of
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any temporary Global Note or permanent Global Note, together with any additional
amounts payable in respect thereof, as provided in the terms and conditions of
such Debt Security, shall be payable only upon presentation of such Debt
Security to the Trustee for notation thereon of the payment of such interest.
Section 12.02. Officer's Certificate as to Default.
-----------------------------------
The Company shall deliver to the Trustee, on or before a date not more
than 120 days after the end of each fiscal year of the Company ending after the
date hereof (but in no event shall the first such delivery be later than one
year after the date hereof), a certificate of the principal executive officer,
principal financial officer or principal accounting officer stating whether or
not to the best knowledge of the signer thereof the Company is in compliance
with all covenants and conditions under this Indenture, and, if the Company
shall be in default, specifying all such defaults and the nature thereof of
which such signer may have knowledge. The Company shall inform the Trustee in
writing of any change in its fiscal year. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
Section 12.03. Maintenance of Office or Agency.
-------------------------------
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain or cause to be maintained in each Place of
Payment for such series an office or agency where Debt Securities of that series
may be presented or surrendered for payment, where Debt Securities of that
series may be surrendered for registration of transfer or exchange or
redemption, where Debt Securities of that series that are convertible may be
surrendered for conversion, if applicable, and where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served. If Debt Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The City
and State of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series, if any, may be surrendered for registration of
transfer, where Debt Securities of that series may be surrendered for exchange
or redemption, where Debt Securities of that series that are convertible may be
surrendered for conversion, where notices and demands to or upon the Company in
respect of the Debt Securities of that series and this Indenture may be served
and where Bearer Securities of that series and related Coupons may be presented
or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Debt Securities of that series and
related Coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series, if so
provided pursuant to Section 3.01); provided, however, that if the Debt
-------- -------
Securities of that series are listed on The Stock Exchange of the United Kingdom
and the Republic of Ireland, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will
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maintain a Paying Agent for the Debt Securities of that series in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange and redemption, where Debt Securities of that series
that are convertible may be surrendered for conversion, and where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the locations, and any change in the locations, of such
offices or agencies. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related Coupons may be presented and
surrendered for payment at the offices specified in the applicable Debt
Security, and the Company hereby appoints the Trustee, or in the case of Bearer
Securities, such other agent as is specified pursuant to Section 3.01, as its
agent to receive all presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
-------- -------
the Debt Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any additional amounts payable on Securities of such series, if so provided
pursuant to Section 3.01) shall be made at the office of the Trustee or the
Company's Paying Agent in the Borough of Manhattan, The City and State of New
York, if (but only if) payment in Dollars of the full amount of such principal,
premium, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 12.04. Money for Debt Securities; Payments to Be Held in
-------------------------------------------------
Trust.
- -----
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities and Coupons, if any, it will, on or
before each due date of the
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principal of (and premium, if any) or interest on any of the Debt Securities of
such series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities and Coupons, it will, by or on each due date of
the principal (and premium, if any) or interest on any Debt Securities of such
series, deposit with any such Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Debt Securities of such series 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;
(2) give the Trustee prompt written notice of any default by the
Company (or any other obligor upon the Debt Securities of such series) in
the making of any payment of principal (and premium, if any) or interest on
the Debt Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of 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 payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Subject to any applicable abandoned property law, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) or interest on any Debt
Security of any series and
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remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company upon Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Debt Security or Coupon 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, in its sole discretion, at the expense of the
Company cause to be transmitted in the manner and to the extent provided by
Section 1.05, 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
notification, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 12.05. Corporate Existence.
-------------------
Subject to any supplemental indentures hereto or Officers'
Certificates creating any series, 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 (charter and statutory) and franchises; provided, however,
-------- -------
that the Company shall not be required to preserve any such right or franchise
if its Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of its business.
Section 12.06. Purchase of Debt Securities by Company.
--------------------------------------
If the Debt Securities of a series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
Section 12.07. INTENTIONALLY OMITTED
Section 12.08. INTENTIONALLY OMITTED
Section 12.09. Waiver of Certain Covenants.
---------------------------
With respect to the Debt Securities of any series, the Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Section 12.05 (and, if so specified pursuant to Section 3.01, any
other covenant not set forth herein and specified pursuant to Section 3.01 to be
applicable to the Debt Securities of any series, except as otherwise provided
pursuant to Section 3.01) with respect to the Debt Securities of any series if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Debt Securities of such series shall, by Act
of such
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Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent
expressly so waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
Section 12.10. Original Issue Discount.
-----------------------
The Company shall file with the Trustee promptly after the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. Applicability of Article.
------------------------
Debt Securities of any series which are redeemable before their
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Debt Securities of any series)
in accordance with this Article.
Section 13.02. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.03, the Company shall, at least 60 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
Section 13.03. Selection by Trustee of Debt Securities to Be
---------------------------------------------
Redeemed.
Except in the case of a redemption in whole of the Bearer Securities
or the Registered Securities of such series, if less than all the Debt
Securities of any series are to be redeemed at the election of the Company, the
particular Debt Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the
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Outstanding Debt Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Debt Securities of such series or any integral
multiple thereof) of the principal amount of Debt Securities of such series in a
denomination larger than the minimum authorized denomination for Debt Securities
of such series pursuant to Section 3.02 in the Currency in which the Debt
Securities of such series are denominated. The portions of the principal amount
of Debt Securities so selected for partial redemption shall be equal to the
minimum authorized denominations for Debt Securities of such series pursuant to
Section 3.02 in the Currency in which the Debt Securities of such series are
denominated or any integral multiple thereof, except as otherwise set forth in
the applicable form of Debt Securities. In any case when more than one
Registered Security of such series is registered in the same name, the Trustee
in its discretion may treat the aggregate principal amount so registered as if
it were represented by one Registered Security of such series.
If any Debt Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Debt Security so selected, the converted portion of such Debt Security shall
be deemed (so far as may be) to be the portion selected for redemption. Debt
Securities which have been converted during a selection of Debt Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
Section 13.04. Notice of Redemption.
--------------------
Notice of redemption shall be given by the Company, or at the
Company's request, by the Trustee in the name and at the expense of the Company,
not less than 30 days and not more than 60 days prior to the Redemption Date to
the Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
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All notices of redemption shall state (including the CUSIP number, if
any):
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or the terms of
the Debt Securities of such series or a supplemental indenture establishing
such series, if such be the case, together with a brief statement of the
facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
and that a new Debt Security shall be issued,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after said date,
(6) in the case of Debt Securities of any series that is convertible,
the Conversion Price, the date on which the right to convert the principal
of the Debt Securities of such series to be redeemed will terminate and the
place or places where such Debt Securities may be surrendered for
conversion,
(7) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons
will be deducted from the Redemption Price,
(8) the Place or Places of Payment where such Debt Securities are to
be surrendered for payment of the Redemption Price,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 3.05(b) or
otherwise, the last date on which such exchanges may be made, and
(10) that the redemption is for a sinking fund, if such is the case.
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Section 13.05. Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date for any Debt Securities, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 12.04) an amount of money in the Currency or Currencies in
which such Debt Securities are denominated (except as provided pursuant to
Section 3.01 or 3.10) sufficient to pay the Redemption Price of such Debt
Securities or such amount or any portions thereof which are to be redeemed on
that date.
Section 13.06. Debt Securities Payable on Redemption Date.
------------------------------------------
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Section 3.01
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt Security shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest on Bearer
-------- -------
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 12.03) and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of Coupons
for such interest; and provided, further, that, unless otherwise specified as
-------- -------
contemplated by Section 3.01, installments of interest on Registered Securities
which have a Stated Maturity on or prior to the Redemption Date for such Debt
Securities shall be payable according to the terms of such Debt Securities and
the provisions of Section 3.07.
If, as a result of the failure of the Company to deposit sufficient
funds with the Trustee, any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any Paying Agent outside the United
States any such missing Coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted. The surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless.
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Section 13.07. Debt Securities Redeemed in Part.
--------------------------------
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Trustee or such other office or agency of
the Company outside the United States as is specified pursuant to Section 3.01
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Debt Security without service charge, a new Debt
Security or Debt Securities of the same series, of like tenor and form, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as
aforesaid, may make a notation on such Debt Security of the payment of the
redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Debt
Securities of any series, the amount of any cash sinking fund payment may be
subject to reduction as provided in Section 14.02. Each sinking fund payment
shall be applied to the redemption of Debt Securities of any series as provided
for by the terms of Debt Securities of such series.
Section 14.02. Satisfaction of Mandatory Sinking Fund Payments with
----------------------------------------------------
Debt Securities.
- ---------------
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time
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no more than sixteen months and no less than 45 days prior to the date on which
such sinking fund payment is due, deliver to the Trustee Debt Securities of such
series (together with the unmatured Coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Debt
Securities of such series which have been redeemed through the application of
mandatory sinking fund payments pursuant to the terms of the Debt Securities of
such series, accompanied by a Company Order instructing the Trustee to credit
such sinking fund payment and stating that the Debt Securities of such series
were originally issued by the Company by way of bona fide sale or other
negotiation for value, provided that such Debt Securities shall not have been
--------
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 14.03. Redemption of Debt Securities for Sinking Fund.
----------------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.01 or 3.10) and the portion thereof, if any, which is to be satisfied
by delivering and crediting Debt Securities of such series pursuant to Section
14.02 and whether the Company intends to exercise its rights to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit Debt Securities as provided in Section 14.02 and
without the right to make any optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment
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received by the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 12.04) for such series and,
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys
with respect to the Debt Securities of any particular series held by the Trustee
(or if the Company is acting as its own Paying Agent, segregated and held in
trust as provided in Section 12.04) on the last sinking fund payment date with
respect to Debt Securities of such series and not held for the payment or
redemption of particular Debt Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent),
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Debt
Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Debt Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 13.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.04. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.06.
On or before each sinking fund payment date, the Company shall pay to
the Trustee (or, if the Company is acting as its own Paying Agent, the Company
shall segregate and hold in trust as provided in Section 12.04) in cash a sum,
in the Currency or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to Sections 3.01 or 3.10), equal to the
principal and any interest accrued to the Redemption Date for Debt Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee nor the Company shall redeem any Debt Securities
of a series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee (or segregated by the Company) for that purpose in accordance with
the terms of this Article. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities and Coupons, if any, of such series; provided,
--------
however, that in case such default or Event of Default shall have been cured or
- -------
waived as provided herein, such moneys shall thereafter be applied on or prior
to the next sinking fund payment date for the Debt Securities of such series on
which such moneys may be applied pursuant to the provisions of this Section.
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ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. Applicability of Article.
------------------------
If, pursuant to Section 3.01, provision is made for the defeasance of
Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.01) then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or Currencies or for Bearer Securities may be
specified pursuant to Section 3.01.
Section 15.02. Defeasance Upon Deposit of Moneys or U.S. Government
----------------------------------------------------
Obligations.
- -----------
At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Debt Securities of any series ("legal defeasance option") or (b) if so specified
pursuant to Section 3.01, the Company shall cease to be under any obligation to
comply with any obligation of the Company or restrictive covenants added for the
benefit of such series pursuant to Section 3.01) ("covenant defeasance option"),
in either case at any time after the applicable conditions set forth below have
been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Debt Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest on,
the Outstanding Debt Securities of such series on the dates such
installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to the Debt
Securities of that series to have a conflicting interest as defined in
Section 6.08 and for purposes of the Trust Indenture Act with respect to
the Debt Securities of any series;
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(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel or a letter or other document from such
exchange to the effect that the Company's exercise of its option under this
Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit) which, with
notice or lapse of time or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and be
continuing on the date of such deposit and, with respect to the legal
defeasance option only, no Event of Default under Section 5.01(5) or
Section 5.01(6) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.01(5) or Section
5.01(6) shall have occurred and be continuing on the 91st day after such
date;
(6) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling from the Internal Revenue Service to the effect that
such deposit, defeasance or the Holders of the Debt Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance or Discharge; and
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in accordance with Section 1.02.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(5) or Section 5.01(6) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.01(5) or Section 5.01(6) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated. Money and securities held
in trust pursuant to a legal defeasance shall not be subject to Article Sixteen.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Debt Securities when
such payments are due, (B) the Company's obligations with respect to the Debt
Securities of such
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series under Sections 3.04, 3.05, 3.06, 6.07, 12.03 and 15.03 and (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the timely payment of which its full faith
and credit is pledged, or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; provided that (except as
--------
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
Section 15.03. Deposited Moneys and U.S. Government Obligations to Be
------------------------------------------------------
Held in Trust.
- -------------
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.02 in respect of Debt Securities of a series shall be
held in trust and applied by it, in accordance with the provisions of such Debt
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 Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
Section 15.04. Repayment to Company.
--------------------
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are not required for the payment of the principal of
(and premium, if any) and interest on the Debt Securities of any series for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.02.
The provisions of the last paragraph of Section 12.04 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 15.02.
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ARTICLE SIXTEEN
SUBORDINATION
Section 16.01. Agreement to Subordinate.
------------------------
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Debt Securities of any series (or of any Coupons
appertaining thereto) by his acceptance thereof, likewise covenants and agrees,
that the indebtedness represented by the Debt Securities of such series then
Outstanding (and any Coupons appertaining thereto) and the payment of the
principal of (and premium, if any) and interest on each and all of the Debt
Securities of such series (including, without limitation, any payment of Coupons
appertaining thereto) is hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, in right of payment to the prior payment in full
of all Senior Indebtedness. Each reference in this Article to a "Debt Security"
or "Debt Securities" refers to the Debt Securities of a particular series, and
references to a "Coupon" or "Coupons" refer to the Coupons, if any, appertaining
to the Debt Securities of such series. Without limiting the generality of the
immediately preceding sentence, if more than one series of Debt Securities are
outstanding at any time, (i) the provisions of this Article shall be applied
separately to each such series, and (ii) references to the Trustee refer to the
Trustee for the Debt Securities of such series.
Section 16.02. Distribution on Dissolution Liquidation and
-------------------------------------------
Reorganization; Subrogation of Debt Securities.
- ----------------------------------------------
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization, of the Company, whether voluntary or
involuntary and whether in bankruptcy, insolvency, reorganization, receivership
or other 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 Debt Securities
and the Holders thereof by a plan of reorganization under applicable bankruptcy
law):
(a) the holders of all Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due thereon before
the Holders of the Debt Securities (or of any Coupons) are entitled to
receive any payment upon the principal (and premium, if any) or interest on
indebtedness evidenced by the Debt Securities (or any payment of any
Coupons); and
(b) any payment or distribution of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of
the Debt Securities (or of any Coupons) or the Trustee would be entitled
except for the provisions of this Article Sixteen 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
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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, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if
any) and interest 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; and
(c) 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, shall be received by the Trustee, any Paying
Agent or the Holders of the Debt Securities (or any Coupons) before all
Senior Indebtedness is paid in full, such payment or distribution shall be
paid over, upon written notice to the Trustee or such Paying Agent, to the
holder of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instrument evidencing any of such Senior Indebtedness may have
been issued, ratably as aforesaid, for application to 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.
The consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation, to the extent the same is
permitted under the outstanding Senior Indebtedness, shall not be deemed a
dissolution, winding up, liquidation or reorganization for the purposes of this
Section 16.02.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Debt Securities (and of any Coupons) shall 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 until
the principal of (and premium, if any) and interest on the Debt Securities
(including, without limitation, payment of the Coupons) shall be paid in full,
and no such payments or distributions to the Holders of the Debt Securities (or
of any Coupons) of cash, property, or securities otherwise distributable to the
holders of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the Debt
Securities (and of any Coupons) be deemed to be a payment by the Company to or
on account of the Debt Securities (or of any Coupons). It is understood that
the provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Debt Securities
(and of any Coupons), on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
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Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Debt Securities (or any Coupons) is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Debt Securities (and of any Coupons), the
obligation of the Company, which is unconditional and absolute, to pay to the
Holders of the Debt Securities (and of any Coupons) the principal of (and
premium, if any) and interest on the Debt Securities (including, without
limitation, payment of any Coupons) 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 Debt Securities (or of any Coupons) and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or in
the Debt Securities (or Coupons) prevent the Trustee or the Holder of any Debt
Security (or any Coupon) from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article Sixteen of the holders of Senior Indebtedness 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 Section 16.02, the Trustee and any Paying Agent, subject to the
provisions of Section 6.03, shall be entitled to rely upon a certificate or
other writing of the liquidating trustee or agent or other Person making any
distribution to the Trustee for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent to
this Article Sixteen.
Except as specifically set forth herein, neither the Trustee nor any
Paying Agent, however, shall be deemed to owe any fiduciary or other duty to the
holders of Senior Indebtedness. Neither the Trustee nor any Paying Agent shall
be liable to any such holder if it shall in good faith pay or distribute to or
on behalf of Holders of Debt Securities (or of any Coupons) of the Company
moneys or assets to which any holder of Senior Indebtedness shall be entitled by
virtue of this Article Sixteen or any other instrument.
If the Trustee or any Holder of Debt Securities (and of any Coupons)
does not file a proper claim or proof of debt in the form required in any
proceeding referred to above prior to 30 days before the expiration of the time
to file such claim in such proceeding, then the holder of any Senior
Indebtedness is hereby authorized, and has the right, to file an appropriate
claim or claims for or on behalf of such Holder of Debt Securities (or of any
Coupons).
For the purposes of this Indenture, Senior Indebtedness shall not be
deemed to have been paid in full until the holders of the Senior Indebtedness
shall have indefeasibly received payment in full in cash of all Senior
Indebtedness; provided that if any holder of Senior Indebtedness agrees to
accept payment in full of such Senior Indebtedness for consideration other than
cash, such holder shall be deemed to have indefeasibly received payment in full
of such Senior Indebtedness.
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Section 16.03. No Payment on Debt Securities in Event of Default on
----------------------------------------------------
Senior Indebtedness.
- -------------------
No payment by the Company on account of principal (or premium, if
any), sinking funds or interest on the Debt Securities (including, without
limitation, payment of any Coupons) shall be made unless full payment of amounts
then due for principal, premium, if any, sinking funds, and interest on Senior
Indebtedness has been made or duly provided for.
Section 16.04. Payments on Debt Securities Permitted.
-------------------------------------
Nothing contained in this Indenture or in any of the Debt Securities
(or any Coupons) shall (a) affect the obligation of the Company to make, or
prevent the Company from making, at any time except as provided in Sections
16.02 and 16.03, payments of principal (and premium, if any) or interest on the
Debt Securities (including, without limitation, payment of any Coupons) or (b)
prevent the application by the Trustee of any moneys deposited with it hereunder
to the payment of or on account of the principal of (and premium, if any) or
interest on the Debt Securities (including, without limitation, the payment of
any Coupons), unless the Trustee shall have received at its Corporate Trust
Office written notice of any event prohibiting the making of such payment more
than two Business Days prior to the date fixed for such payment.
Section 16.05. Authorization of Holders to Trustee to Effect
---------------------------------------------
Subordination.
- -------------
Each Holder of Debt Securities (or of any Coupons) by his acceptance
thereof and any Paying Agent (other than the Company) authorizes and directs the
Trustee on his or its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article Sixteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
Without limiting the foregoing, each Representative is hereby irrevocably
authorized and empowered (in its own name or in the name of the Holders of Debt
Securities or the Trustee or otherwise), but shall have no obligation, to
demand, sue for, collect and receive every payment or distribution referred to
in Section 16.02 above and give acquittance therefor and to file claims and
proofs of claim and take such other action as it may deem necessary or advisable
for the exercise or enforcement of any of the rights or interests of the holders
or owners of the Senior Indebtedness hereunder; provided that for purposes of
this Section 16.05 holders or owners of Senior Indebtedness may act only through
such Representative.
Section 16.06. Notices to Trustee.
------------------
The Company shall give prompt written notice to the Trustee and any
Paying Agent (other than the Company) of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee or such Paying
Agent in respect of the Debt Securities (or any Coupons) pursuant to this
Article Sixteen. Failure to give such notice shall not affect the subordination
of the Debt Securities (or any Coupons) to Senior Indebtedness.
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Notwithstanding the provisions of this Article or any other provisions of this
Indenture, neither the Trustee nor any Paying Agent (other than the Company)
shall be charged with knowledge of the existence of any Senior Indebtedness 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 (in the case of the Trustee, at its Corporate Trust
Office) written notice thereof from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee; provided, however, that if at least two Business Days
-------- -------
prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of either
the principal of (and premium, if any) or interest on any Debt Security
(including, without limitation, the payment of any Coupons)) the Trustee or any
such Paying Agent shall not have received with respect to such moneys the notice
provided for in this Section 16.06, then, anything herein contained to the
contrary notwithstanding, the Trustee or any such Paying Agent shall have full
power and authority to receive such moneys and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary, which may be received by it less than two Business Days prior to such
date. The Trustee or any such Paying Agent shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such a notice has been given by a holder of Senior Indebtedness
or a trustee on behalf of any such holder. In the event that the Trustee or any
such Paying Agent determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article Sixteen, the
Trustee or any such Paying Agent may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee or any such Paying Agent as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Sixteen and, if
such evidence is not furnished, the Trustee or any such Paying Agent may defer
any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.
Section 16.07. Trustee as Holder of Senior Indebtedness.
----------------------------------------
Subject to the provisions of Section 6.13, the Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article Sixteen in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07.
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Section 16.08. Modifications of Terms of Senior Indebtedness.
---------------------------------------------
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made or
done all without notice to or assent from the Holders of the Debt Securities (or
of any Coupons) or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Sixteen or of the Debt Securities (or of any Coupons) relating to the
subordination thereof.
Section 16.09. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent.
- -----------------
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee and the Holders of the Debt Securities (and
of any Coupons) shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which any insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or upon a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Debt Securities (or of any
Coupons), for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable therein, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Sixteen.
Section 16.10. Article Sixteen Not to Prevent Events of Default.
------------------------------------------------
No provision of this Article Sixteen shall prevent the occurrence of
any default or Event of Default hereunder.
Section 16.11. Certain Conversions Not Deemed Payment.
--------------------------------------
For the purposes of this Article Sixteen only, in the case of Debt
Securities of any series that is convertible, (i) the issuance and delivery of
junior securities (as hereinafter defined) upon conversion of such Debt
Securities in accordance with Article Seventeen shall not be deemed to
constitute a payment or distribution on account of the principal of (or premium,
if any) or interest on such Debt Securities or on account of the purchase or
other acquisition of such Debt Securities, and (2) the payment, issuance or
delivery of cash,
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property or securities (other than junior securities) upon conversion of a Debt
Security of such series shall be deemed to constitute payment on account of the
principal of such Debt Security. For the purposes of this Section, the term
"junior securities" means (a) shares of any stock of any class of the Company
and (b) securities of the Company which are subordinated in right of payment to
all Senior Indebtedness which may be Outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a greater
extent than, the Debt Securities are so subordinated as provided in this Article
Sixteen. Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Debt Securities is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Debt Securities, the right, which is absolute and unconditional, of the
Holder of any Debt Security of any series that is convertible to convert such
Debt Security in accordance with Article Seventeen.
ARTICLE SEVENTEEN
CONVERSION
Section 17.01. Applicability; Conversion Privilege.
-----------------------------------
Except as otherwise specified pursuant to Section 3.01 for Debt
Securities of any series, the provisions of this Article Seventeen shall be
applicable to any Debt Securities that are convertible into Common Stock. Each
reference in this Article to a "Debt Security" or "Debt Securities" refers to
the Debt Securities of a particular series that is convertible into Common
Stock, and references to a "Coupon" or "Coupons" refer to the Coupons, if any,
appertaining to the Debt Securities of such series. Without limiting the
generality of the immediately preceding sentence, if two or more series of Debt
Securities with conversion privileges are outstanding at any time, (i) the
provisions of this Article shall be applied separately to each such series, and
(ii) references to the Trustee refer to the Trustee for the Debt Securities of
such series. If so provided pursuant to Section 3.01 with respect to the Debt
Securities of any series, the Holder of a Debt Security of such series shall
have the right, at such Holder's option, to convert, in accordance with the
terms of such series of Debt Securities and this Article Seventeen, all or any
part (if the portion to be converted and the remaining portion of such Debt
Security are in authorized denominations for that series of Debt Securities) of
such Debt Security into shares of Common Stock, at any time during the period
specified in the terms of the Debt Securities of the series pursuant to Section
3.01, at the Conversion Price in effect on the date of conversion, or, as to any
Debt Securities called for redemption at any time prior to the time and date
fixed for such redemption (unless the Company shall default in the payment of
the Redemption Price, in which case such right shall not terminate at such time
and date).
Section 17.02. Conversion Procedure; Conversion Price; Fractional
--------------------------------------------------
Shares.
- ------
(a) Except as otherwise specified as contemplated by Section 3.01 for
Debt Securities of any series, each Debt Security of such series to which this
Article is applicable
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shall be convertible at the office of the Conversion Agent, and at such other
place or places, if any, specified pursuant to Section 3.01 with respect to the
Debt Securities of such series, into fully paid and nonassessable shares
(calculated to the nearest 1/100th of a share) of Common Stock. The Debt
Securities will be converted into shares of Common Stock at the Conversion Price
therefor. No payment or adjustment shall be made in respect of dividends on the
Common Stock or accrued interest on a converted Debt Security except as
described in Section 17.09 and Section 17.02(c). The Company may, but shall not
be required, in connection with any conversion of Debt Securities, to issue a
fraction of a share of Common Stock and, if the Company shall determine not to
issue any such fraction, the Company shall, subject to Section 17.03(4), make a
cash payment (calculated to the nearest cent) equal to such fraction multiplied
by the Closing Price of the Common Stock on the last Trading Day prior to the
date of conversion.
(b) Before any Holder of a Debt Security shall be entitled to convert
the same into Common Stock, such Holder shall surrender such Debt Security duly
endorsed to the Company or in blank, or, in the case of Bearer Securities,
together with all unmatured Coupons and any matured Coupons in default attached
thereto, at the office of the Conversion Agent or at such other place or places,
if any, specified pursuant to Section 3.01 (in the case of Registered
Securities) and at an office of the Conversion Agent or at such other place or
places, if any, outside of the United States as is specified pursuant to Section
3.01 (in the case of Bearer Securities), and shall give written notice to the
Company at said office or place that he elects to convert the same and shall
state in writing therein the principal amount of Debt Securities to be converted
and the name or names (with addresses) in which he wishes the certificate or
certificates for Common Stock to be issued.
If more than one Debt Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares of Common Stock which
shall be deliverable upon conversion shall be computed on the basis of the
aggregate principal amount of the Debt Securities (or specified portions thereof
to the extent permitted thereby) so surrendered. Subject to the next succeeding
sentence, the Company will as soon as practicable after the surrender of a Debt
Security for conversion, issue and deliver at said office or place to the Holder
of a Debt Security, or to his nominee or nominees, certificates for the number
of full shares of Common Stock to which he shall be entitled as aforesaid,
together, subject to the last sentence of paragraph (a) above, with cash in lieu
of any fraction of a share to which he would otherwise be entitled. The Company
shall not be required to deliver certificates for shares of Common Stock while
the stock transfer books for such stock or the Security Register are duly closed
for any purpose, but certificates for shares of Common Stock shall be issued and
delivered as soon as practicable after the opening of such books or Security
Register.
(c) If at the time of surrender pursuant to Section 17.02(a), the
Holder of a Bearer Security is unable to produce all unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such conversion may be effected if the
Bearer Securities to be surrendered for conversion are accompanied by payment in
funds acceptable to the Company
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in an amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Bearer Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
--------
however, that except as otherwise provided in Section 12.03, interest
- -------
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an office or agency located outside the United States.
(d) A Debt Security shall be deemed to have been converted as of the
close of business on the date of the surrender of such Debt Security for
conversion as provided above, and the Person or Persons entitled to receive the
Common Stock issuable upon such conversion shall be treated for all purposes as
the record Holder or Holders of such Common Stock as of the close of business on
such date.
(e) In case any Debt Security shall be surrendered for partial
conversion, the Company shall execute and the Trustee shall authenticate and
deliver to or upon the written order of the Holder of the Debt Securities so
surrendered, without charge to such Holder (subject to the provisions of Section
17.08), a new Debt Security or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Debt Security, together, in the case of Bearer Securities, with any unmatured
Coupons and matured Coupons in default attached thereto.
Section 17.03. Adjustment of Conversion Price for Common Stock.
-----------------------------------------------
The Conversion Price with respect to any Debt Security which is
convertible into Common Stock shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to time while
any of such Debt Securities are outstanding, (i) pay a dividend in shares
of its Common stock to holders of Common Stock, (ii) combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock, (iii) subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock or (iv) make a distribution in
shares of Common Stock to holders of Common Stock, then the Conversion
Price in effect immediately before such action shall be adjusted so that
the Holders of such Debt Securities, upon conversion thereof into Common
Stock immediately following such event, shall be entitled to receive the
kind and amount of shares of capital stock of the Company which they would
have owned or been entitled to receive upon or by reason of such event if
such Debt Securities had been converted immediately before the record date
(or, if no record date, the effective date) for such event. An adjustment
made pursuant to this Section 17.03(1) shall become effective retroactively
immediately after the record date in the case of a dividend or distribution
and shall become effective retroactively immediately after the effective
date in the case
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of a subdivision or combination. For the purposes of this Section
17.03(1), each Holder of Debt Securities shall be deemed to have failed to
exercise any right to elect the kind or amount of securities receivable
upon the payment of any such dividend, subdivision, combination or
distribution (provided that if the kind or amount of securities receivable
upon such dividend, subdivision, combination or distribution is not the
same for each nonelecting share, then the kind and amount of securities or
other property receivable upon such dividend, subdivision, combination or
distribution for each nonelecting share shall be deemed to be the kind and
amount so receivable per share by a plurality of the nonelecting shares).
(2) In case the Company shall, at any time or from time to time while
any of such Debt Securities are outstanding, issue rights or warrants to
all or substantially all holders of shares of its Common Stock entitling
them (for a period expiring within 45 days after the record date for such
issuance) to subscribe for or purchase shares of Common Stock (or
securities convertible into shares of Common Stock) at a price per share
less than the Current Market Price of the Common Stock at such record date
(treating the price per share of the securities convertible into Common
Stock as equal to (x) the sum of (i) the price for a unit of the security
convertible into Common Stock and (ii) any additional consideration
initially payable upon the conversion of such security into Common Stock
divided by (y) the number of shares of Common Stock initially underlying
such convertible security), the Conversion Price with respect to such Debt
Securities shall be adjusted so that it shall equal the price determined by
dividing the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of additional shares of
Common Stock offered for subscription or purchase (or into which the
convertible securities so offered are initially convertible), and the
denominator of which shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus the
number of shares or securities which the aggregate offering price of the
total number of shares or securities so offered for subscription or
purchase (or the aggregate purchase price of the convertible securities so
offered plus the aggregate amount of any additional consideration initially
payable upon conversion of such securities into Common Stock) would
purchase at such Current Market Price of the Common Stock. Such adjustment
shall become effective retroactively immediately after the record date for
the determination of stockholders entitled to receive such rights or
warrants.
(3) In case the Company shall, at any time or from time to time while
any of such Debt Securities are outstanding, distribute to all or
substantially all holders of shares of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation and the Common Stock is not changed
or exchanged) cash, evidences of its indebtedness, securities or assets
(excluding (i) regular periodic cash dividends in amounts, if any,
determined from time to time by the Board of Directors (to the extent paid
from
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current or retained earnings of the Company) or (ii) dividends payable in
shares of Common Stock for which adjustment is made under Section 17.03(1))
or rights or warrants to subscribe for or purchase securities of the
Company (excluding those referred to in Section 17.03(2)), then in each
such case the Conversion Price with respect to such Debt Securities shall
be adjusted so that it shall equal the price determined by dividing the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction, the numerator of which shall be the Current
Market Price of the Common Stock on the record date referred to below, and
the denominator of which shall be such Current Market Price of the Common
Stock less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of the
portion of the cash or assets or evidences of indebtedness or securities so
distributed or of such subscription rights or warrants applicable to one
share of Common Stock (provided that such denominator shall never be less
than 1.0); provided, however, that no adjustment shall be made with respect
-------- -------
to any distribution of rights to purchase securities of the Company if a
Holder of Debt Securities would otherwise be entitled to receive such
rights upon conversion at any time of such Debt Securities into Common
Stock unless such rights are subsequently redeemed by the Company, in which
case such redemption shall be treated for purposes of this section as a
dividend on the Common Stock. Such adjustment shall become effective
retroactively immediately after the record date for the determination of
stockholders entitled to receive such distribution; and in the event that
such distribution is not so made, the Conversion Price shall again be
adjusted to the Conversion Price which would then be in effect if such
record date had not been fixed.
(4) The Company shall be entitled to make such additional adjustments
in the Conversion Price, in addition to those required by subsections
17.3(1), 17.3(2) and 17.3(3), as shall be necessary in order that any
dividend or distribution of Common Stock, any subdivision, reclassification
or combination of shares of Common Stock or any issuance of rights or
warrants referred to above shall not be taxable to the holders of Common
Stock for United States Federal income tax purposes.
(5) In any case in which this Section 17.03 shall require that any
adjustment be made effective as of or retroactively immediately following a
record date, the Company may elect to defer (but only for five (5) Trading
Days following the filing of the statement referred to in Section 17.05)
issuing to the Holder of any Debt Securities converted after such record
date the shares of Common Stock and other capital stock of the Company
issuable upon such conversion over and above the shares of Common Stock and
other capital stock of the Company issuable upon such conversion on the
basis of the Conversion Price prior to adjustment; provided, however, that
-------- -------
the Company shall deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder's right to receive such additional shares
upon the occurrence of the event requiring such adjustment.
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(6) All calculations under this Section 17.03 shall be made to the
nearest cent or one-hundredth of a share or security, with one-half cent
and 0.005 of a share, respectively, being rounded upward. Notwithstanding
any other provision of this Section 17.03, the Company shall not be
required to make any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least 1% of such
price. Any lesser adjustment shall be carried forward and shall be made at
the time of and together with the next subsequent adjustment which,
together with any adjustment or adjustments so carried forward, shall
amount to an increase or decrease of at least 1% in such price. Any
adjustments under this Section 17.03 shall be made successively whenever an
event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an adjustment made
pursuant to this Section 17.03, the Holder of any Debt Security thereafter
surrendered for conversion shall become entitled to receive any shares of
stock of the Company other than shares of Common Stock into which the Debt
Securities originally were convertible, the Conversion Price of such other
shares so receivable upon conversion of any such Debt Security shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common Stock
contained in subparagraphs (1) through (6) of this Section 17.03, and the
provision of Sections 17.1, 17.2 and 17.4 through 17.9 with respect to the
Common Stock shall apply on like or similar terms to any such other shares
and the determination of the Board of Directors as to any such adjustment
shall be conclusive.
(8) No adjustment shall be made pursuant to this Section: (i) if the
effect thereof would be to reduce the Conversion Price below the par value
(if any) of the Common Stock or (ii) subject to 17.3(5) hereof, with
respect to any Debt Security that is converted prior to the time such
adjustment otherwise would be made.
Section 17.04. Consolidation or Merger of the Company.
--------------------------------------
In case of either (a) any consolidation or merger to which the Company
is a party, other than a merger or consolidation in which the Company is the
surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value) in, outstanding shares
of Common Stock or (b) any sale or conveyance of all or substantially all of the
property and assets of the Company to another Person, then each Debt Security
then outstanding shall be convertible from and after such merger, consolidation,
sale or conveyance of property and assets into the kind and amount of shares of
stock or other securities and property receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such Debt Securities should have been converted immediately prior to
such consolidation, merger, sale or conveyance, subject to adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Seventeen (and assuming such holder of Common Stock failed
to
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<PAGE>
exercise his rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such consolidation, merger, sale or
conveyance (provided that, if the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, sale or conveyance is not
the same for each nonelecting share, then the kind and amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance for each nonelecting share shall be deemed to be the
kind and amount so receivable per share by a plurality of the nonelecting shares
or securities)). The Company shall not enter into any of the transactions
referred to in clause (a) or (b) of the preceding sentence unless effective
provision shall be made so as to give effect to the provisions set forth in this
Section 17.04. The provisions of this Section 17.04 shall apply similarly to
successive consolidations, mergers, sales or conveyances.
Section 17.05. Notice of Adjustment.
--------------------
Whenever an adjustment in the Conversion Price with respect to a
series of Debt Securities is required:
(1) the Company shall forthwith place on file with the Trustee and
any Conversion Agent for such Securities an Officers' Certificate, stating
the adjusted Conversion Price determined as provided herein and setting
forth in reasonable detail such facts as shall be necessary to show the
reason for and the manner of computing such adjustment, such certificate to
be conclusive evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be given by the
Company, or at the Company's request, by the Trustee in the name and at the
expense of the Company, in the manner provided in Section 1.05. Any notice
so given shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice.
Section 17.06. Notice in Certain Events.
------------------------
In case:
(1) of a consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of
the sale or conveyance to another Person or entity or group of Persons or
entities acting in concert as a partnership, limited partnership, syndicate
or other group (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of all or substantially all of the
property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
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<PAGE>
(3) of any action triggering an adjustment of the Conversion Price
pursuant to this Article Seventeen;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of applicable Debt Securities in the manner provided in
Section 1.05, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article
Seventeen, or, if a record is not to be taken, the date as of which the holders
of record of Common Stock entitled to such distribution, rights or warrants are
to be determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article Seventeen is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2) or (3) of
this Section.
Section 17.07. Company To Reserve Stock; Registration; Listing.
-----------------------------------------------
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Debt Securities, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all applicable outstanding Debt
Securities into such Common Stock at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Debt Securities
would be held by a single holder); provided, however, that nothing contained
-------- -------
herein shall preclude the Company from satisfying its obligations in respect of
the conversion of the Debt Securities by delivery of purchased shares of Common
Stock which are held in the treasury of the Company. The Company shall from
time to time, in accordance with the laws of the State of Delaware, use its best
efforts to cause the authorized amount of the Common Stock to be increased if
the aggregate of the authorized amount of the Common Stock remaining issued and
the issued shares of such Common Stock in its treasury (other than any such
shares reserved for issuance in any other connection) shall not be sufficient to
permit the conversion of all Debt Securities. The Company covenants that all
shares of Common Stock which may be issued upon conversion of Debt Securities
will upon issue be fully paid and nonassessable and free from all liens and
charges and, except as provided in Section 17.08, taxes with respect to the
issue thereof.
(b) If any shares of Common Stock which would be issuable upon
conversion of Debt Securities hereunder require registration with or approval of
any governmental
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<PAGE>
authority before such shares or securities may be issued upon such conversion,
the Company will in good faith and as expeditiously as possible endeavor to
cause such shares or securities to be duly registered or approved, as the case
may be. The Company further covenants that so long as the Common Stock shall be
included for quotation on NASDAQ, the Company will, if permitted by the rules of
such exchange, list and keep listed all Common Stock issuable upon conversion of
the Debt Securities, and the Company will endeavor to list the shares of Common
Stock required to be delivered upon conversion of the Debt Securities prior to
such delivery upon any other national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery.
Section 17.08. Taxes on Conversion.
-------------------
The issue of stock certificates on conversion of Debt Securities shall
be made without charge to the converting Holder for any tax in respect of the
issue thereof, and the Company shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of Debt Securities pursuant
hereto. The Company shall not, however, be required to pay any such tax which
may be payable in respect of any transfer involved in the issue or delivery of
shares of Common Stock or the portion, if any, of the Debt Securities which are
not so converted in a name other than that in which the Debt Securities so
converted were registered (in the case of Registered Securities), and no such
issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of such tax or has established to the
satisfaction of the Company that such tax has been paid.
Section 17.09. Conversion After Record Date.
----------------------------
If any Registered Securities are surrendered for conversion subsequent
to the record date preceding an Interest Payment Date but on or prior to such
Interest Payment Date (except Registered Securities called for redemption on a
Redemption Date between such record date and Interest Payment Date), the Holder
of such Registered Securities at the close of business on such record date shall
be entitled to receive the interest payable on such Registered Securities on
such Interest Payment Date notwithstanding the conversion thereof. Registered
Securities surrendered for conversion during the period from the close of
business on any record date next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date shall (except in the case of
Registered Securities which have been called for redemption on a Redemption Date
within such period) be accompanied by payment in New York Clearing House funds
or other funds and in the Currency acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the Registered
Securities being surrendered for conversion. Except as provided in this Section
17.09 and Section 17.02(c), no adjustments in respect of payments of interest on
Debt Securities surrendered for conversion or any dividends or distributions or
interest on the Common Stock issued upon conversion shall be made upon the
conversion of any Debt Securities.
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<PAGE>
Section 17.10. Company Determination Final.
---------------------------
Any determination that the Company or the Board of Directors must make
pursuant to this Article shall be conclusive if made in good faith and in
accordance with the provisions of this Article, absent manifest error.
Section 17.11 Trustee's Disclaimer.
--------------------
The Trustee has no duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be. The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Debt Securities. The Trustee shall not be responsible
for the Company's failure to comply with this Article. Each Conversion Agent
other than the Company shall have the same protection under this Section as the
Trustee.
_____________
This instrument may be executed in any number of counterparts, each of
which so executed shall constitute an original and all of which together shall
constitute one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
THE MONEY STORE INC.
By:___________________________
Title:__________________________
THE BANK OF NEW YORK,
as Trustee
By:___________________________
Title:__________________________
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EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
______________________________
[Insert title or sufficient description
of Securities to be deliverd]
This is to certify that as of the date hereof and except as set forth
below $_______ principal amount of the above captioned Debt Securities held by
you for our account (i) is owned by person(s) that are not United States
person(s) (as defined below), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Company or the
Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition if the owner of the Debt
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this is
to further certify that such financial institution has not acquired the Debt
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the beneficial
interest in the temporary global Security held by you for our account in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
-1-
<PAGE>
This certificate excepts and does not relate to $________ principal
amount of Debt Securities held by you for our account as to which we are not
able to provide a certificate in this form. We understand that exchange of such
portion of the temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are able to provide
a certificate in this form.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States Person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: _______________________, 19__
[To be dated no earlier than the 10th day before the Exchange Date]
By:___________________________
As, or as agent for, the beneficial
owner(s) of the portion of the
temporary global Note to which this
certificate relates.
-2-
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND CEDEL,
SOCIETE ANONYME IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
__________________________
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof, $_________
principal amount of the above-captioned Debt Securities (i) is owned by
person(s) that are not United States person(s) (as defined below), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the Treasury regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations), and in addition United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Debt Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that we are not making available for exchange
or collection of any interest any portion of the temporary Global Note excepted
in such certifications and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
<PAGE>
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: _________________________, 19__
[To be dated no earlier than the
Exchange Date]
By:___________________________
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euro-Clear
System] [CEDEL BANK, SOCIETE
ANONYME]
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<PAGE>
EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
(Subordinated Debt Securities)
FIRST SUPPLEMENTAL INDENTURE dated as of December 1, 1997 (this "First
Supplemental Indenture"), to the Indenture, dated as of December 1, 1997 (the
"Indenture"), between THE MONEY STORE INC., a New Jersey corporation
(hereinafter called the "Company"), having its principal executive office at
2840 Morris Avenue, Union, New Jersey 07083, and THE BANK OF NEW YORK, a New
York banking corporation (hereinafter called the "Trustee"), having its
Corporate Trust Office at 101 Barclay Street, Floor 21 West, New York, New York
10286.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness (hereinafter called
the "Debt Securities") to be issued in one or more series, as provided in the
Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this First Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Debt
Securities designated as its 7.30% Subordinated Notes due 2002 in the aggregate
principal amount of $150,000,000, a specimen copy of which is attached hereto as
Exhibit A (the "Notes"), on the terms set forth herein; and
WHEREAS, Section 11.01 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any holder of any Debt Securities to, inter alia, establish the terms of any
Debt Securities as permitted by Sections 2.01 and 3.01 of the Indenture,
provided certain conditions are met; and
WHEREAS, the conditions set forth in the Indenture for the execution
and delivery of this First Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this First Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with
its terms, and a valid amendment of, and supplement to, the Indenture have been
done.
NOW THEREFORE, there is hereby established a series (as that term is
used in Section 3.01 of the Indenture) of Debt Securities to be issued under the
Indenture, which series of Debt Securities shall have the terms set forth herein
and in the Notes, and in consideration of the premises and the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of all holders of the
Notes, that the Indenture is supplemented and amended, to the extent and for the
purposes expressed herein, as follows:
<PAGE>
ARTICLE ONE
Scope of this First
-------------------
Supplemental Indenture
----------------------
Section 1.1. Changes, etc. Applicable Only to the Notes. The
------------------------------------------
changes, modifications and supplements to the Indenture effected by this First
Supplemental Indenture in Sections 2.1 through 2.4 hereof shall be applicable
only with respect to, and govern the terms of, the Notes, which shall be limited
in aggregate principal amount to $150,000,000, except as provided in Section
3.01(2) of the Indenture, and shall not apply to any other Debt Securities which
may be issued under the Indenture unless a supplemental indenture with respect
to such other Debt Securities specifically incorporates such changes,
modifications and supplements.
ARTICLE TWO
Amendments to the Indenture
---------------------------
Section 2.1. Amendment to Section 1.01. Section 1.01 of the
-------------------------
Indenture is hereby amended by adding the following definition in its proper
alphabetical order:
"Notes" means $150,000,000 aggregate principal amount of the Company's
7.30% Subordinated Notes due 2002.
Section 2.2. Amendment to Section 5.01. Section 5.01 of the
-------------------------
Indenture is hereby amended by adding thereto the following additional "Event of
Default" as paragraph (7) thereof, and the existing paragraph (7) shall be
renumbered as paragraph (8):
(7) there shall be a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or under any
mortgage, indenture or other instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money
borrowed by the Company or under any guarantee of payment by the Company of
indebtedness for money borrowed, whether such indebtedness or guarantee now
exists or shall hereafter be created, which default relates to the
obligation to pay the principal of or interest on any such indebtedness or
guarantee when due and payable; provided, however, that in the case of a
default in the payment of interest, such default shall continue for a
period of thirty days; provided, further that no default under this Section
5.01(7) shall exist unless the amount of such default or defaults, either
individually or in the aggregate, is in excess of $15,000,000; or
-2-
<PAGE>
Section 2.3. Ranking. The Notes will rank in right of payment, on a
-------
pari passu basis, with that series of notes issued under the Indenture entitled
"7.95% Subordinated Notes due 2007."
Section 2.4. Terms of the Notes. In accordance with Section 3.01 of
------------------
the Indenture, the Notes are subject to the terms set forth in this First
Supplemental Indenture including without limitation Exhibit A hereto, the terms
of which are hereby incorporated in their entirety by reference. In addition to
the other terms of the Notes which are set forth elsewhere in this First
Supplemental Indenture and Exhibit A hereto, the Notes are subject to all of the
provisions of the Indenture including, without limitation, the subordination
provisions contained in Article Sixteen and the Company's legal defeasance
option and covenant defeasance option pursuant to Section 15.02 of the
Indenture, but excluding the sinking fund and conversion provisions set forth in
Articles Fourteen and Seventeen of the Indenture, respectively.
ARTICLE THREE
Miscellaneous
-------------
Section 3.1. Defined Terms. Unless otherwise provided in this First
-------------
Supplemental Indenture, all defined terms used in this First Supplemental
Indenture shall have the meanings assigned to them in the Indenture.
Section 3.2. Conflict of Any Provision of Indenture with Trust
-------------------------------------------------
Indenture Act of 1939. If and to the extent that any provision of this First
- ---------------------
Supplemental Indenture limits, qualifies or conflicts with another provision
included in this First Supplemental Indenture or in the Indenture which is
required to be included herein or therein by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended, such required
provision shall control.
SECTION 3.3. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE AND
-------------
THE NOTES SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN
THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW
RULES OF SAID STATE.
Section 3.4. Counterparts. This First Supplemental 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.
Section 3.5. Effect of Headings. The Article and Section headings
------------------
herein are for convenience only and shall not affect the construction hereof.
Section 3.6. Severability of Provisions. In case any provision in
--------------------------
this First
-3-
<PAGE>
Supplemental Indenture or in the Notes 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 3.7. Successors and Assigns. All covenants and agreements in
----------------------
this First Supplemental Indenture by the parties hereto shall bind their
respective successors and assigns and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
Section 3.8. Benefit of Supplemental Indenture. Nothing in this
---------------------------------
First Supplemental Indenture, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent and
their successors hereunder, and the Holders of the Notes, any benefit or any
legal or equitable right, remedy or claim under this First Supplemental
Indenture.
Section 3.9. Trustee Not Responsible for Recitals or Sufficiency.
---------------------------------------------------
The recitals contained herein, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the sufficiency of this First Supplemental Indenture.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the day and year first above written.
THE MONEY STORE INC.
By:______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:______________________________________
Name:
Title:
-5-
<PAGE>
EXHIBIT A
[FORM OF FACE OF SUBORDINATED NOTE]
THE MONEY STORE INC.
7.30% Subordinated Notes Due 2002
REGISTERED REGISTERED
No. R-_
CUSIP 60934T AQ4 $____________
If this Note is registered in the name of The Depository Trust Company
(the "Depositary") (55 Water Street, New York, New York) or its
nominee, 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 and until this Note is
exchanged in whole or in part for Notes in definitive form. Unless
this certificate is presented by an authorized representative of the
Depositary to the Company 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 Depositary (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co. has an interest herein.
THE MONEY STORE INC., a corporation duly organized and validly
existing under the laws of the State of New Jersey (herein called the "Company",
which term includes any successor corporation under the Indenture, as defined on
the reverse side hereof), for value received hereby promises to pay to
______________, or registered assigns, the principal sum of $______________
(_______________ DOLLARS) on December 1, 2002 in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, semi-annually on June
1 and December 1 of each year, commencing June 1, 1998 on said principal sum in
like coin or currency, at the rate per annum specified in the title of this
Note, from December 1, 1997 or from the most recent Interest Payment Date for
which interest has been paid or duly provided for, until payment of said
principal sum has been made or duly provided for. The interest so payable on
each Interest Payment Date will be paid to the Person in whose name this Note
is registered at the close of business on the Regular Record Date, which shall
be the May 15 or
A-1
<PAGE>
November 15 (whether or not a Business Day) next preceding such
Interest Payment Date, provided that any such interest not punctually paid or
duly provided for shall be payable as provided in the Indenture.
Payment of the principal of, and premium, if any, on, this Note will
be made in immediately available funds upon surrender of this Note at the
Corporate Trust Office of the Trustee. Interest will be paid by check mailed to
the address of the Person entitled thereto as it appears in the Security
Register on the applicable Regular Record Date or, at the option of the Company,
by wire transfer to an account maintained by such Person with a bank located in
the United States.
THIS NOTE SHALL BE DEEMED A CONTRACT UNDER THE LAWS OF THE STATE OF
NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
A-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
THE MONEY STORE INC.
By:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
issued under the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:______________________________
Authorized Signatory
A-3
<PAGE>
[REVERSE SIDE OF NOTE]
THE MONEY STORE INC.
7.30% Subordinated Notes Due 2002
This Note is one of a duly authorized issue of Debt Securities of the
Company designated as its 7.30% Subordinated Notes due 2002 (herein called the
"Notes"), limited in aggregate principal amount to $150,000,000, issued and to
be issued under an Indenture dated as of December 1, 1997, as amended and
supplemented by the First Supplemental Indenture dated as of December 1, 1997
(herein called the "Indenture"), between the Company and The Bank of New York,
as trustee (herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
duties, obligations and immunities of the Company, the Trustee and the Holders
of the Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register relating to the Notes, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount with like terms and conditions, will be issued to the
designated transferee.
The Notes are issuable only as registered Notes without Coupons in the
denominations of $1,000, and integral multiples thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes with like terms and
conditions of different authorized denominations, as requested by the Holder
surrendering the same.
Except as otherwise provided in the Indenture, no service charge will
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 for registration of transfer or exchange of
this Note, 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 the purpose of receiving payment as herein provided and for all other
purposes, whether or not this Note be overdue, and neither the Company nor the
Trustee nor any such agent shall be affected by notice to the contrary.
If an Event of Default shall occur with respect to the Notes, the
principal of all the Notes, plus accrued and unpaid interest (and premium, if
any), may be declared due and payable in the manner and with the effect provided
in the Indenture.
A-4
<PAGE>
The Notes are not subject to any sinking fund and are not subject to
any redemption prior to maturity. The Notes are not convertible into or
exchangeable for any other securities of the Company.
The Notes are subordinated to all Senior Indebtedness of the Company.
To the extent and in the manner provided in the Indenture, Senior Indebtedness
must be paid before any payment may be made to any Holders of the Notes. Any
Holder by accepting this Note agrees to the subordination and authorizes the
Trustee to give it effect.
In addition to all other rights of Senior Indebtedness described in
the Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to the
Senior Indebtedness or extension or renewal of the Senior Indebtedness.
The Indenture contains provisions permitting the Company and the
Trustee, with the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, voting separately, to enter into supplemental
indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of modifying in any
manner the rights of the Holders under the Indenture of such Debt Securities, or
Coupons, if any; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each such
series affected thereby, (i) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or reduce the principal
amount thereof, or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any payment to
be made regarding any Coupon, or change the Currency or Currencies in which the
principal of (and premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund, or impair the right to institute suit
for the enforcement of any payment on or after the stated Maturity thereof, or
(ii) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the Holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of any series, on behalf of the Holders of all the Debt Securities of
any such series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults or Event of Default 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
A-5
<PAGE>
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, place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest (and premium, if any) on this Note, or any part thereof, or of the
indebtedness represented hereby, or upon any obligation, covenant or agreement
of the Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, officer or director, as such, past,
present or future, of the Company or any predecessor or successor corporation,
either directly or indirectly through the Company, or any such predecessor or
successor corporation 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 agreed and understood that the Indenture or any indenture supplemental
thereto and this Note are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company or any
predecessor or successor corporation, either directly or indirectly through the
Company or any such predecessor or successor corporation, because of the
indebtedness authorized under the Indenture or under or by reason of any of the
obligations, covenants, promises or agreements contained in the Indenture or in
this Note or to be implied therefrom or herefrom; and that any such personal
liability, by the acceptance hereof and as part of the consideration for the
issue hereof, is expressly waived and released.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Note.
All terms used in this Note which are not defined in this Note shall
have the meanings assigned to them in the Indenture.
A-6
<PAGE>
The following abbreviations, when used in the inscription on the face
of the within Note, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entirety
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT
MIN ACT - Custodian
----------------- ---------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
-----------------------------
(State)
Additional abbreviations may also be used though not in the above list.
A-7
<PAGE>
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)
- -------------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
Attorney to
- ----------------------------------------------------------------
transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed.
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
A-8
<PAGE>
EXHIBIT 4.3
SUPPLEMENTAL INDENTURE
(Subordinated Debt Securities)
SECOND SUPPLEMENTAL INDENTURE dated as of December 1, 1997 (this
"Second Supplemental Indenture"), to the Indenture, dated as of December 1, 1997
(the "Indenture"), between THE MONEY STORE INC., a New Jersey corporation
(hereinafter called the "Company"), having its principal executive office at
2840 Morris Avenue, Union, New Jersey 07083, and THE BANK OF NEW YORK, a New
York banking corporation (hereinafter called the "Trustee"), having its
Corporate Trust Office at 101 Barclay Street, Floor 21 West, New York, New York
10286.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness (hereinafter called
the "Debt Securities") to be issued in one or more series, as provided in the
Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this Second Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Debt
Securities designated as its 7.95% Subordinated Notes due 2007 in the aggregate
principal amount of $100,000,000, a specimen copy of which is attached hereto as
Exhibit A (the "Notes"), on the terms set forth herein; and
WHEREAS, Section 11.01 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any holder of any Debt Securities to, inter alia, establish the terms of any
Debt Securities as permitted by Sections 2.01 and 3.01 of the Indenture,
provided certain conditions are met; and
WHEREAS, the conditions set forth in the Indenture for the execution
and delivery of this Second Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with
its terms, and a valid amendment of, and supplement to, the Indenture have been
done.
NOW THEREFORE, there is hereby established a series (as that term is
used in Section 3.01 of the Indenture) of Debt Securities to be issued under the
Indenture, which series of Debt Securities shall have the terms set forth herein
and in the Notes, and in consideration of the premises and the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of all holders of the
Notes, that the Indenture is supplemented and amended, to the extent and for the
purposes expressed herein, as follows:
<PAGE>
ARTICLE ONE
Scope of this Second
--------------------
Supplemental Indenture
----------------------
Section 1.1. Changes, etc. Applicable Only to the Notes. The
------------------------------------------
changes, modifications and supplements to the Indenture effected by this Second
Supplemental Indenture in Sections 2.1 through 2.4 hereof shall be applicable
only with respect to, and govern the terms of, the Notes, which shall be limited
in aggregate principal amount to $100,000,000, except as provided in Section
3.01(2) of the Indenture, and shall not apply to any other Debt Securities which
may be issued under the Indenture unless a supplemental indenture with respect
to such other Debt Securities specifically incorporates such changes,
modifications and supplements.
ARTICLE TWO
Amendments to the Indenture
---------------------------
Section 2.1. Amendment to Section 1.01. Section 1.01 of the
-------------------------
Indenture is hereby amended by adding the following definition in its proper
alphabetical order:
"Notes" means $100,000,000 aggregate principal amount of the Company's
7.95% Subordinated Notes due 2007.
Section 2.2. Amendment to Section 5.01. Section 5.01 of the
-------------------------
Indenture is hereby amended by adding thereto the following additional "Event of
Default" as paragraph (7) thereof, and the existing paragraph (7) shall be
renumbered as paragraph (8):
(7) there shall be a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or under any
mortgage, indenture or other instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money
borrowed by the Company or under any guarantee of payment by the Company of
indebtedness for money borrowed, whether such indebtedness or guarantee now
exists or shall hereafter be created, which default relates to the
obligation to pay the principal of or interest on any such indebtedness or
guarantee when due and payable; provided, however, that in the case of a
default in the payment of interest, such default shall continue for a
period of thirty days; provided, further that no default under this Section
5.01(7) shall exist unless the amount of such default or defaults, either
individually or in the aggregate, is in excess of $15,000,000; or
-2-
<PAGE>
Section 2.3. Ranking. The Notes will rank in right of payment, on a
-------
pari passu basis, with that series of notes issued under the Indenture entitled
"7.30% Subordinated Notes due 2002."
Section 2.4. Terms of the Notes. In accordance with Section 3.01 of
------------------
the Indenture, the Notes are subject to the terms set forth in this Second
Supplemental Indenture including without limitation Exhibit A hereto, the terms
of which are hereby incorporated in their entirety by reference. In addition to
the other terms of the Notes which are set forth elsewhere in this Second
Supplemental Indenture and Exhibit A hereto, the Notes are subject to all of the
provisions of the Indenture including, without limitation, the subordination
provisions contained in Article Sixteen and the Company's legal defeasance
option and covenant defeasance option pursuant to Section 15.02 of the
Indenture, but excluding the sinking fund and conversion provisions set forth in
Articles Fourteen and Seventeen of the Indenture, respectively.
ARTICLE THREE
Miscellaneous
-------------
Section 3.1. Defined Terms. Unless otherwise provided in this Second
-------------
Supplemental Indenture, all defined terms used in this Second Supplemental
Indenture shall have the meanings assigned to them in the Indenture.
Section 3.2. Conflict of Any Provision of Indenture with Trust
-------------------------------------------------
Indenture Act of 1939. If and to the extent that any provision of this Second
- ---------------------
Supplemental Indenture limits, qualifies or conflicts with another provision
included in this Second Supplemental Indenture or in the Indenture which is
required to be included herein or therein by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended, such required
provision shall control.
SECTION 3.3. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE AND
-------------
THE NOTES SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN
THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW
RULES OF SAID STATE.
Section 3.4. Counterparts. This Second Supplemental 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.
Section 3.5. Effect of Headings. The Article and Section headings
------------------
herein are for convenience only and shall not affect the construction hereof.
-3-
<PAGE>
Section 3.6. Severability of Provisions. In case any provision in
--------------------------
this Second Supplemental Indenture or in the Notes 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 3.7. Successors and Assigns. All covenants and agreements in
----------------------
this Second Supplemental Indenture by the parties hereto shall bind their
respective successors and assigns and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
Section 3.8. Benefit of Supplemental Indenture. Nothing in this
---------------------------------
Second Supplemental Indenture, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent and
their successors hereunder, and the Holders of the Notes, any benefit or any
legal or equitable right, remedy or claim under this Second Supplemental
Indenture.
Section 3.9. Trustee Not Responsible for Recitals or Sufficiency.
---------------------------------------------------
The recitals contained herein, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the sufficiency of this Second Supplemental Indenture.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, all as of the day and year first above written.
THE MONEY STORE INC.
By:______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:______________________________________
Name:
Title:
-5-
<PAGE>
EXHIBIT A
[FORM OF FACE OF SUBORDINATED NOTE]
THE MONEY STORE INC.
7.95% Subordinated Notes Due 2007
REGISTERED REGISTERED
No. R-_
CUSIP 60934T AR2 $____________
If this Note is registered in the name of The Depository Trust Company
(the "Depositary") (55 Water Street, New York, New York) or its
nominee, 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 and until this Note is
exchanged in whole or in part for Notes in definitive form. Unless
this certificate is presented by an authorized representative of the
Depositary to the Company 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 Depositary (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co. has an interest herein.
THE MONEY STORE INC., a corporation duly organized and validly
existing under the laws of the State of New Jersey (herein called the "Company",
which term includes any successor corporation under the Indenture, as defined on
the reverse side hereof), for value received hereby promises to pay to
______________, or registered assigns, the principal sum of $______________
(_______________ DOLLARS) on December 1, 2007 in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, semi-annually on June
1 and December 1 of each year, commencing June 1, 1998 on said principal sum in
like coin or currency, at the rate per annum specified in the title of this
Note, from December 1, 1997 or from the most recent Interest Payment Date for
which interest has been paid or duly provided for, until payment of said
principal sum has been made or duly provided for. The interest so payable on
each Interest Payment Date will be paid to the Person in whose name this Note
is registered at the close of business on the Regular Record Date, which shall
be the May 15 or November 15 (whether or not a Business Day) next preceding such
Interest
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<PAGE>
Payment Date, provided that any such interest not punctually paid or duly
provided for shall be payable as provided in the Indenture.
Payment of the principal of, and premium, if any, on, this Note will
be made in immediately available funds upon surrender of this Note at the
Corporate Trust Office of the Trustee. Interest will be paid by check mailed to
the address of the Person entitled thereto as it appears in the Security
Register on the applicable Regular Record Date or, at the option of the Company,
by wire transfer to an account maintained by such Person with a bank located in
the United States.
THIS NOTE SHALL BE DEEMED A CONTRACT UNDER THE LAWS OF THE STATE OF
NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
THE MONEY STORE INC.
By:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
issued under the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:______________________________
Authorized Signatory
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<PAGE>
[REVERSE SIDE OF NOTE]
THE MONEY STORE INC.
7.95% Subordinated Notes Due 2007
This Note is one of a duly authorized issue of Debt Securities of the
Company designated as its 7.95% Subordinated Notes due 2007 (herein called the
"Notes"), limited in aggregate principal amount to $100,000,000, issued and to
be issued under an Indenture dated as of December 1, 1997, as amended and
supplemented by the Second Supplemental Indenture dated as of December 1, 1997
(herein called the "Indenture"), between the Company and The Bank of New York,
as trustee (herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
duties, obligations and immunities of the Company, the Trustee and the Holders
of the Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register relating to the Notes, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount with like terms and conditions, will be issued to the
designated transferee.
The Notes are issuable only as registered Notes without Coupons in the
denominations of $1,000, and integral multiples thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes with like terms and
conditions of different authorized denominations, as requested by the Holder
surrendering the same.
Except as otherwise provided in the Indenture, no service charge will
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 for registration of transfer or exchange of
this Note, 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 the purpose of receiving payment as herein provided and for all other
purposes, whether or not this Note be overdue, and neither the Company nor the
Trustee nor any such agent shall be affected by notice to the contrary.
If an Event of Default shall occur with respect to the Notes, the
principal of all the Notes, plus accrued and unpaid interest (and premium, if
any), may be declared due and payable in the manner and with the effect provided
in the Indenture.
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<PAGE>
The Notes are not subject to any sinking fund and are not subject to
any redemption prior to maturity. The Notes are not convertible into or
exchangeable for any other securities of the Company.
The Notes are subordinated to all Senior Indebtedness of the Company.
To the extent and in the manner provided in the Indenture, Senior Indebtedness
must be paid before any payment may be made to any Holders of the Notes. Any
Holder by accepting this Note agrees to the subordination and authorizes the
Trustee to give it effect.
In addition to all other rights of Senior Indebtedness described in
the Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to the
Senior Indebtedness or extension or renewal of the Senior Indebtedness.
The Indenture contains provisions permitting the Company and the
Trustee, with the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, voting separately, to enter into supplemental
indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of modifying in any
manner the rights of the Holders under the Indenture of such Debt Securities, or
Coupons, if any; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each such
series affected thereby, (i) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or reduce the principal
amount thereof, or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any payment to
be made regarding any Coupon, or change the Currency or Currencies in which the
principal of (and premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund, or impair the right to institute suit
for the enforcement of any payment on or after the stated Maturity thereof, or
(ii) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the Holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of any series, on behalf of the Holders of all the Debt Securities of
any such series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults or Event of Default 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.
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<PAGE>
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, place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest (and premium, if any) on this Note, or any part thereof, or of the
indebtedness represented hereby, or upon any obligation, covenant or agreement
of the Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, officer or director, as such, past,
present or future, of the Company or any predecessor or successor corporation,
either directly or indirectly through the Company, or any such predecessor or
successor corporation 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 agreed and understood that the Indenture or any indenture supplemental
thereto and this Note are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company or any
predecessor or successor corporation, either directly or indirectly through the
Company or any such predecessor or successor corporation, because of the
indebtedness authorized under the Indenture or under or by reason of any of the
obligations, covenants, promises or agreements contained in the Indenture or in
this Note or to be implied therefrom or herefrom; and that any such personal
liability, by the acceptance hereof and as part of the consideration for the
issue hereof, is expressly waived and released.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Note.
All terms used in this Note which are not defined in this Note shall
have the meanings assigned to them in the Indenture.
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<PAGE>
The following abbreviations, when used in the inscription on the face
of the within Note, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entirety
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT
MIN ACT - ___________________ Custodian _________________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
-------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
A-7
<PAGE>
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)
- -------------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
- -------------------------------------------------------------------Attorney to
transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed.
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
A-8
