<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 1994
REGISTRATION NO. 33-53643
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
KEYCORP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OHIO 34-6542451
(I.R.S. EMPLOYER
(STATE OR OTHER JURISDICTION OF IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
127 PUBLIC SQUARE
CLEVELAND, OHIO 44114
(216) 689-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
CARTER B. CHASE, ESQ., EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL, AND SECRETARY
KEYCORP
127 PUBLIC SQUARE
CLEVELAND, OHIO 44114
(216) 689-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
THOMAS C. STEVENS, ESQ. STUART K. FLEISCHMANN, ESQ.
THOMPSON, HINE AND FLORY SHEARMAN & STERLING
1100 NATIONAL CITY BANK BUILDING 599 LEXINGTON AVENUE
CLEVELAND, OHIO 44114 NEW YORK, NEW YORK 10022
(216) 566-5500 (212) 848-4000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
securities being registered other than underwriting compensation are as
follows:
<TABLE>
<S> <C>
SEC Registration Fee............................................ $ 55,380
Fees of Rating Agencies......................................... 150,000
Printing and Engraving Expenses................................. 15,000
Legal Fees and Expenses......................................... 125,000
Accounting Fees and Expenses.................................... 20,000
Fees of Indenture Trustees ..................................... 8,000
Blue Sky Fees and Expenses...................................... 25,000
Miscellaneous................................................... 26,620
--------
Total......................................................... $425,000
========
</TABLE>
- --------
All the above amounts except the SEC registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Ohio law, Ohio corporations are authorized to indemnify directors,
officers, employees, and agents within prescribed limits and must indemnify
them under certain circumstances. Ohio law does not provide statutory
authorization for a corporation to indemnify directors, officers, employees,
and agents for settlements, fines, or judgments in the context of derivative
suits. However, it provides that directors (but not officers, employees, and
agents) are entitled to mandatory advancement of expenses, including attorneys'
fees, incurred in defending any action, including derivative actions, brought
against the director, provided the director agrees to cooperate with the
corporation concerning the matter and to repay the amount advanced if it is
proved by clear and convincing evidence that his act or failure to act was done
with deliberate intent to cause injury to the corporation or with reckless
disregard for the corporation's best interests.
Ohio law does not authorize payment of judgments to a director, officer,
employee, or agent after a finding of negligence or misconduct in a derivative
suit absent a court order. Indemnification is required, however, to the extent
such person succeeds on the merits. In all other cases, if a director, officer,
employee, or agent acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation,
indemnification is discretionary except as otherwise provided by a
corporation's articles, code of regulations, or by contract except with respect
to the advancement of expenses of directors.
Under Ohio law, a director is not liable for monetary damages unless it is
proved by clear and convincing evidence that his action or failure to act was
undertaken with deliberate intent to cause injury to the corporation or with
reckless disregard for the best interests of the corporation. There is,
however, no comparable provision limiting the liability of officers, employees,
or agents of a corporation. The statutory right to indemnification is not
exclusive in Ohio, and Ohio corporations may, among other things, procure
insurance for such persons.
The KeyCorp Regulations provide that KeyCorp shall indemnify to the fullest
extent permitted by law any person made or threatened to be made a party to any
action, suit, or proceeding by reason of the fact that he is or was a director,
officer, or employee of KeyCorp or of any other bank, corporation, partnership,
trust, or other enterprise for which he was serving as a director, officer, or
employee at the request of KeyCorp.
II-1
<PAGE>
Reference is made to the Form of Underwriting Agreement and the Distribution
Agreement for additional provisions for the indemnification of directors,
controlling persons, and certain officers of the Registrant by the
underwriters. The Forms of Underwriting Agreement and Distribution Agreement
are exhibits to the Registration Statement.
Except as stated above, neither the Amended and Restated Articles of
Incorporation of KeyCorp nor any other contract or arrangement to which KeyCorp
is a party provides for such indemnification. Under the terms of KeyCorp's
directors' and officers' liability and company reimbursement insurance policy,
directors and officers of KeyCorp are insured against certain liabilities,
including liabilities arising under the Securities Act.
KeyCorp is a party to Employment Agreements with, respectively, Victor J.
Riley, Jr., Robert W. Gillespie, and Roger Noall, and KeyCorp is party to
Change of Control Agreements with certain other executive officers (the
provisions of which became effective as a result of the merger of old KeyCorp
with and into Society), pursuant to which KeyCorp has agreed to indemnify the
officer, to the full extent permitted or authorized by Ohio law, if the officer
is made or threatened to be made a party to any action, suit, or proceeding by
reason of the officer's serving as an employee, officer, or director of KeyCorp
and/or any of its subsidiaries or any other company at the request of KeyCorp
or any of its subsidiaries, and KeyCorp has agreed to advance expenses incurred
by the officer in defending any such action, suit, or proceeding.
ITEM 16. EXHIBITS.
See Index to Exhibits.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) to remove from registration by means of post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration
II-2
<PAGE>
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby further undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under section
305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 1 TO
FORM S-3 REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF CLEVELAND, STATE OF OHIO, ON THIS
NINETEENTH DAY OF MAY, 1994.
KeyCorp
By /s/ Carter B. Chase
-----------------------------------
CARTER B. CHASE
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL, AND SECRETARY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO FORM S-3 REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
<TABLE>
<CAPTION>
TITLE AND DESCRIPTION
---------------------
<S> <C>
Victor J. Riley, Jr., Chairman of the Board, Chief Executive Officer, and
Director (Principal Executive Officer); James W. Wert, Chief Financial
Officer (Principal Financial Officer); Lee G. Irving, Executive Vice
President, Treasurer, and Chief Accounting Officer (Principal Accounting
Officer); H. Douglas Barclay, Director; William G. Bares, Director;
Albert C. Bersticker, Director; Thomas A. Commes, Director;
John C. Dimmer, Director; Lucie J. Fjeldstad, Director;
Henry S. Hemingway, Director; Charles R. Hogan, Director;
Lawrence A. Leser, Director; Steven A. Minter, Director;
M. Thomas Moore, Director; John C. Morley, Director;
Richard W. Pogue, Director; Robert A. Schumacher, Director;
Dennis W. Sullivan, Director; Peter G. Ten Eyck, II, Director; and
Nancy B. Veeder, Director.
</TABLE>
By /s/ Carter B. Chase
-----------------------------------
CARTER B. CHASE
ATTORNEY-IN-FACT
May 19, 1994
II-4
<PAGE>
KEYCORP
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
FORM S-3
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
(1)(a) Form of Underwriting Agreement.*
(1)(b) Form of Distribution Agreement.*
(4)(a) Amended and Restated Articles of Incorporation of KeyCorp.
Incorporated herein by reference to Exhibit 7 to Form 8-A/A filed
on February 25, 1994.
(4)(b) Regulations of KeyCorp. Incorporated herein by reference to
Exhibit 6 to Form 8-A/A filed on February 25, 1994.
(4)(c) Form of Senior Indenture, between KeyCorp and Bankers Trust
Company, as Trustee.
(4)(d) Form of Subordinated Indenture between KeyCorp and Bankers Trust
Company, as Trustee.
(4)(e) Form of Senior Debt Securities.
(4)(f) Form of Subordinated Debt Securities.
(4)(g) Form of Warrant Agreement.
(4)(h) Form of Warrant Certificate.
(4)(i) Form of Deposit Agreement.
(4)(j) Form of Depositary Receipt.
(4)(k) Rights Agreement, dated as of August 25, 1989, between Society
Corporation (renamed KeyCorp on March 1, 1994) and First Chicago
Trust Company of New York, as Rights Agent, including as Exhibit
A thereto the form of Rights Certificate. Incorporated herein by
reference to Exhibit 1 to Form 8-A filed on August 29, 1989.
(4)(l) Amendment No. 1 to Rights Agreement, dated February 21, 1991,
between Society Corporation (renamed KeyCorp on March 1, 1994)
and First Chicago Trust Company of New York, as Rights Agent.
Incorporated herein by reference to Exhibit 1 to Form 8-A filed
on February 28, 1991.
(4)(m) Amendment No. 2 to Rights Agreement, dated September 12, 1991,
between Society Corporation (renamed KeyCorp on March 1, 1994)
and First Chicago Trust Company of New York, as Rights Agent.
Incorporated herein by reference to Exhibit 4 to Schedule 13D
filed on September 23, 1991.
(4)(n) Amendment No. 3 to Rights Agreement, dated October 1, 1993,
between Society Corporation (renamed KeyCorp on March 1, 1994)
and Society National Bank, as Rights Agent. Incorporated herein
by reference to Exhibit 4 to Schedule 13D filed on October 12,
1993.
(5) Opinion of Thompson, Hine and Flory as to the legality of the
securities to be registered.
(12) Computation of KeyCorp's Consolidated Ratios of Earnings to Fixed
Charges and Combined Fixed Charges and Preferred Stock
Dividends.**
(23)(a) Consent of Ernst & Young.**
(23)(b) Consent of Thompson, Hine and Flory (included as part of Exhibit
(5)).
(24)(a) Powers of Attorney.**
(24)(b) Certified Resolutions of Board of Directors of KeyCorp.**
(25) Form T-1 Statement of Eligibility and Qualifications under the
Trust Indenture Act of 1939 of Bankers Trust Company, as
Trustee.**
</TABLE>
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* To be filed by amendment.
** Previously filed with the SEC as Exhibits with the same respective numbers
to KeyCorp's Registration Statement on Form S-3, filed with the SEC on May
16, 1994.
<PAGE>
Exhibit 4(c)
KEYCORP
TO
BANKERS TRUST COMPANY,
Trustee
__________________
DEBT SECURITIES
__________________
INDENTURE
Dated as of _________, 1994
__________________
<PAGE>
KEYCORP
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(S) 310 (a)(1) ............................. 607(a)
(a)(2) ............................. 607(a)
(b) ............................. 607(b), 608
(S) 312 (c) ............................. 701
(S) 314 (a) ............................. 703
(a)(4) ............................. 1005
(c)(1) ............................. 102
(c)(2) ............................. 102
(e) ............................. 102
(S) 315 (b) ............................. 601
(S) 316 (a) (last sentence) ............................. 101 ("Outstanding")
(a)(1)(A) ............................. 502, 512
(a)(1)(B) ............................. 513
(b) ............................. 508
(c) ............................. 104(e)
(S) 317 (a)(1) ............................. 503
(a)(2) ............................. 504
(S) 318 (a) ............................. 111
(c) ............................. 111
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES ......................................................... 1
RECITALS OF THE COMPANY ......................................... 1
</TABLE>
ARTICLE ONE
Definitions and Other Provisions
of General Application
<TABLE>
<S> <C> <C>
Section 101. Definitions...................................... 1
Section 102. Compliance Certificates and Opinions............. 12
Section 103. Form of Documents Delivered to Trustee........... 12
Section 104. Acts of Holders; Record Dates.................... 13
Section 105. Notices, Etc. to Trustee and Company............. 14
Section 106. Notice to Holders; Waiver........................ 15
Section 107. Effect of Headings and Table of Contents......... 16
Section 108. Successors and Assigns........................... 16
Section 109. Separability Clause.............................. 16
Section 110. Benefits of Indenture............................ 16
Section 111. Governing Law.................................... 16
Section 112. Legal Holidays................................... 17
Section 113. Obligations of the Company Not Obligations of the
Trustee.......................................... 17
</TABLE>
ARTICLE TWO
Security Forms
<TABLE>
<S> <C> <C>
Section 201. Forms Generally.................................... 17
Section 202. Form of Trustee's Certificate of Authentication.... 18
Section 203. Securities Issuable in Global Form................. 18
</TABLE>
ARTICLE THREE
The Securities
<TABLE>
<CAPTION>
<S> <C> <C>
Section 301. Amount Unlimited; Issuable in Series............... 19
Section 302. Denominations...................................... 23
Section 303. Execution, Authentication, Delivery and Dating..... 24
</TABLE>
<PAGE>
ii
<TABLE>
<S> <C> <C>
Section 304. Temporary Securities............................... 26
Section 305. Registration, Registration of Transfer and Exchange 29
Section 306. Mutilated, Destroyed, Lost and Stolen Securities... 32
Section 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset............................ 33
Section 308. Optional Extension of Maturity..................... 36
Section 309. Persons Deemed Owners.............................. 37
Section 310. Cancellation....................................... 38
Section 311. Computation of Interest............................ 38
Section 312. Currency and Manner of Payments in Respect of
Securities......................................... 38
Section 313. Appointment and Resignation of Successor Exchange
Rate Agent......................................... 42
</TABLE>
ARTICLE FOUR
Satisfaction and Discharge
<TABLE>
<S> <C> <C>
Section 401. Satisfaction and Discharge of Indenture.............. 43
Section 402. Application of Trust Money........................... 44
</TABLE>
ARTICLE FIVE
Remedies
<TABLE>
<S> <C> <C>
Section 501. Events of Default.................................... 45
Section 502. Acceleration of Maturity; Rescission and Annulment... 47
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee........................................... 48
Section 504. Trustee May File Proofs of Claim..................... 49
Section 505. Trustee May Enforce Claims Without Possession of
Securities........................................... 50
Section 506. Application of Money Collected....................... 50
Section 507. Limitation on Suits.................................. 50
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................. 51
Section 509. Restoration of Rights and Remedies................... 51
Section 510. Rights and Remedies Cumulative....................... 52
Section 511. Delay or Omission Not Waiver......................... 52
Section 512. Control by Holders................................... 52
Section 513. Waiver of Past Defaults.............................. 52
Section 514. Waiver of Stay or Extension Laws..................... 53
</TABLE>
<PAGE>
iii
ARTICLE SIX
The Trustee
<TABLE>
<S> <C> <C>
Section 601. Notice of Defaults................................. 53
Section 602. Certain Rights of Trustee.......................... 54
Section 603. Not Responsible for Recitals or Issuance of
Securities......................................... 55
Section 604. May Hold Securities................................ 55
Section 605. Money Held in Trust................................ 56
Section 606. Compensation and Reimbursement..................... 56
Section 607. Corporate Trustee Required; Eligibility............ 56
Section 608. Resignation and Removal; Appointment of Successor.. 57
Section 609. Acceptance of Appointment by Successor............. 58
Section 610. Merger, Conversion, Consolidation or Succession to
Business........................................... 59
Section 611. Appointment of Authenticating Agent................ 60
</TABLE>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
<TABLE>
<S> <C> <C>
Section 701. Disclosure of Names and Addresses of Holders ...... 62
Section 702. Reports by Trustee................................. 62
Section 703. Reports by Company................................. 62
</TABLE>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
<TABLE>
<S> <C>
Section 801. Company May Consolidate, Etc., Only on Certain
Terms................................................ 63
Section 802. Successor Substituted................................ 64
</TABLE>
ARTICLE NINE
Supplemental Indentures
<TABLE>
<S> <C> <C>
Section 901. Supplemental Indentures Without Consent of Holders... 64
Section 902. Supplemental Indentures with Consent of Holders...... 66
Section 903. Execution of Supplemental Indentures................. 67
Section 904. Effect of Supplemental Indentures.................... 67
</TABLE>
<PAGE>
iv
<TABLE>
<S> <C> <C>
Section 905. Conformity with Trust Indenture Act.................. 67
Section 906. Reference in Securities to Supplemental Indentures... 67
</TABLE>
ARTICLE TEN
Covenants
<TABLE>
<S> <C> <C>
Section 1001. Payment of Principal, Premium and Interest........... 68
Section 1002. Maintenance of Office or Agency...................... 68
Section 1003. Money for Securities Payments to Be Held in Trust.... 70
Section 1004. Additional Amounts................................... 71
Section 1005. Statement by Officers as to Default.................. 72
Section 1006. Existence............................................ 72
Section 1007. Maintenance of Properties............................ 72
Section 1008. Payment of Taxes and Other Claims.................... 73
Section 1009. Ownership of Voting Stock of Significant Banks....... 73
Section 1010. Waiver of Certain Covenants.......................... 73
</TABLE>
ARTICLE ELEVEN
Redemption of Securities
<TABLE>
<S> <C> <C>
Section 1101. Applicability of Article............................. 74
Section 1102. Election to Redeem; Notice to Trustee................ 74
Section 1103. Selection by Trustee of Securities to Be Redeemed.... 74
Section 1104. Notice of Redemption................................. 75
Section 1105. Deposit of Redemption Price.......................... 76
Section 1106. Securities Payable on Redemption Date................ 76
Section 1107. Securities Redeemed in Part.......................... 77
</TABLE>
ARTICLE TWELVE
Sinking Funds
<TABLE>
<S> <C> <C>
Section 1201. Applicability of Article............................. 78
Section 1202. Satisfaction of Sinking Fund Payments with Securities 78
Section 1203. Redemption of Securities for Sinking Fund............ 78
</TABLE>
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
<PAGE>
v
<TABLE>
<S> <C> <C>
Section 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.................... 79
Section 1302. Defeasance and Discharge............................. 79
Section 1303. Covenant Defeasance.................................. 80
Section 1304. Conditions to Defeasance or Covenant Defeasance...... 80
Section 1305. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions........ 82
Section 1306. Reinstatement........................................ 83
</TABLE>
ARTICLE FOURTEEN
Meetings of Holders of Securities
<TABLE>
<S> <C> <C>
Section 1401. Purposes for Which Meetings May Be Called............ 84
Section 1402. Call, Notice and Place of Meetings................... 84
Section 1403. Persons Entitled to Vote at Meetings................. 84
Section 1404. Quorum; Action....................................... 85
Section 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings.............................. 86
Section 1406. Counting Votes and Recording Action of Meetings...... 87
</TABLE>
ARTICLE FIFTEEN
Repayment at the Option of Holders
<TABLE>
<S> <C> <C>
Section 1501. Applicability of Article............................. 87
Section 1502. Repayment of Securities.............................. 87
Section 1503. Exercise of Option................................... 88
Section 1504. When Securities Presented for Repayment Become
Due and Payable...................................... 88
Section 1505. Securities Repaid in Part............................ 89
TESTIMONIUM............................................................. 95
SIGNATURES AND SEALS.................................................... 95
ACKNOWLEDGMENTS......................................................... 96
FORMS OF CERTIFICATION.............................................EXHIBIT A
</TABLE>
<PAGE>
INDENTURE, dated as of ___________, 1994, between KeyCorp, a
corporation duly organized and existing under the laws of the State of Ohio
(herein called the "Company"), having its principal office at 127 Public Square,
Cleveland, Ohio 44114, and Bankers Trust Company, a New York banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE>
2
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted 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.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder.
<PAGE>
3
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
its successor.
"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 at such time.
"Common Depositary" has the meaning specified in Section 304(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means, respectively, a written
request or order signed in the name of the Company by a Chairman of the Board, a
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee in accordance with Section 105 hereof.
"Component Currency" has the meaning specified in Section 312(h).
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at Four Albany Street, New York, New York 10006, Attn: Corporate
Trust and Agency Group.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
<PAGE>
4
"Currency Conversion Date" has the meaning specified in Section
312(d).
"Currency Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country which issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU 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 (or composite currency) other than the ECU for the
purposes for which it was established.
"Currency Election Date" has the meaning specified in Section 312(h).
"Currency Indexed Note" means any Security with the amount of
principal payments determined by reference to an index currency.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 312(f).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, 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 Article V.
"Exchange Act" means the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
<PAGE>
5
"Exchange Rate Agent", with respect to Securities of or within any
series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate setting
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant currency or currency unit), payable with respect to
a Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Extension Notice" has the meaning specified in Section 308.
"Extension Period" has the meaning specified in Section 308.
"Final Maturity" has the meaning specified in Section 308.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"Foreign Currency Note" means any Security denominated in one or more
Foreign Currencies.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the 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 of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such government, which, in either case, 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 Government Obligation or a specific payment of interest on
or principal of any such 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 Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
<PAGE>
6
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of a particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any other Foreign Currency on the
other, the exchange rate between the relevant currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 301 for
the Securities of the relevant series, (ii) for any conversion of Dollars into
any Foreign Currency, the noon 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,
<PAGE>
7
London or any other principal market for Dollars of such purchased Foreign
Currency, in each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 301, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent 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 any 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
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate 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 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 Security, means the date on
which the principal of such 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, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee in accordance with
Section 105 hereof. One of the officers signing an Officers' Certificate given
pursuant to Section 1005 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of the Company or other counsel for the Company, or other counsel
acceptable to the Trustee.
"Optional Reset Date" has the meaning specified in Section 307(b).
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Original Stated Maturity" has the meaning specified in Section 308.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
<PAGE>
8
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Securities and on coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1302 and
1303, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Thirteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the 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 making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows
<PAGE>
9
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest, if any, on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to the any Security to
be repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
<PAGE>
10
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Reset Notice" has the meaning specified in Section 307(b).
"Responsible Officer", means, when used with respect to the Trustee,
any officer within the Corporate Trust and Agency Group (or any successor group
thereto) of the Trustee, including any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Bank" means any directly or indirectly owned banking
subsidiary of the Company, the consolidated assets of which constitute 10% or
more of the consolidated total assets of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Specified Amount" has the meaning specified in Section 312(h).
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsequent Interest Period" has the meaning specified in Section
307(b).
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11
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition and for Section 1009, "voting
stock" means stock having voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Temporary/Definitive Exchange Date" has the meaning specified in
Section 304(b).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is 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 312(c).
"Vice President", when used with respect to the Company, means any
vice president, whether or not designated by a number or a word or words added
before or after the title "vice president".
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
<PAGE>
12
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant 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
certificate or opinion 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 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 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel,
or a certificate 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 Opinion of Counsel
or certificates or
<PAGE>
13
representations of counsel may be based, insofar as they relate to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information as to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or more
series, as the case may be, 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 agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders
of Securities of such series duly called and held in accordance with the
provisions of Article Fourteen, or a combination of such instruments and
any such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section
1406.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make,
give or take, by a proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders,
and a Depositary that is a Holder of a Global Security may provide its
proxy or proxies to the beneficial owners of interest in any such Global
Security.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of
<PAGE>
14
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and
the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer outstanding. The ownership of Bearer
Securities may also be proved in any other manner that the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be done
by the Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
Section 105. Notices, Etc. to Trustee and Company.
------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(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 and Agency Group, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing
<PAGE>
15
and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph
of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders
of Registered Securities by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice
to Holders of Registered Securities 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 of Registered Securities or the sufficiency of any notice
to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder
actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to
give such notice by mail, then such notification to Holders of Registered
Securities as shall be made with the approval of the Trustee shall
constitute a sufficient notification to such Holders for every purpose
hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where
this Indenture provides for notice to Holders of Bearer Securities of any
event, such notice shall be sufficiently given if published in an
Authorized Newspaper in The City of New York and in such other city or
cities as may be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any such notice
shall be deemed to have been given on the date of such publication or, if
published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided
above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
<PAGE>
16
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language
of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 107. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 109. Separability Clause.
-------------------
In case any provision in this Indenture or in any Security 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 110. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent, any Authenticating Agent
and their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 111. Governing Law.
-------------
This Indenture and the Securities and coupons shall be governed
by and construed in accordance with the laws of the State of New York.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
<PAGE>
17
Section 112. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security or
coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this
Section), payment of principal (or premium, if any) or interest, if any,
need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
Repayment Date or sinking fund payment date, or at the Stated Maturity or
Maturity, provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
Section 113. Obligations of the Company Not Obligations of the Trustee.
---------------------------------------------------------
Not withstanding anything contained in this Indenture to the
contrary, in no event shall Bankers Trust Company have any liability for
the representations, warranties, covenants, agreements or other obligations
of the Company hereunder or in any of the certificates, notices or
agreements of the Company delivered pursuant hereto, as to all of which
recourse shall be had solely to the assets of the Company, and under no
circumstances shall Bankers Trust Company be personally liable for the
payment of any indebtedness or expenses of the Company; provided, however,
that nothing in this Section 113 shall affect the obligations of the
Company to the Trustee as set forth in Section 606, subject to the
exceptions thereto and limitations thereon.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Registered Securities, if any, of such series and the Bearer
Securities, if any, of each series and related coupons shall be in
substantially the forms as shall be established in one or more indentures
supplemental hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 301, shall have such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture or any indenture supplemental hereto, 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 stock exchange on
<PAGE>
18
which the Securities may be listed, or to conform to usage. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on
a steel engraved border or steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities
or coupons, as evidenced by their execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 611, the Trustee's certificates of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By___________________________________
Authorized Officer
Section 203. Securities Issuable in Global Form.
----------------------------------
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (8) of
Section 301 and the provisions of Section 302, any such Security shall represent
such of the Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 303 or 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee
<PAGE>
19
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an additional Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officer's Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided,
<PAGE>
20
may be determined from time to time by the Company with respect to unissued
Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1505;
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which such interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be
payable, where any Registered Securities of the series may be surrendered
for registration of transfer, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange,
as applicable, and where notices or demands to or upon the Company in
respect of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series may be redeemed, in whole on in part, at the option of the
Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions
<PAGE>
21
upon which Securities of the series shall be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than denominations
of $5,000, the denomination or denominations in which any Bearer Securities
of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(11) if other than Dollars, the currency or currencies, currency unit
or units or composite currency or currencies in which payment of the
principal of (and premium, if any) or interest, if any, on the Securities
of the series shall be payable or in which the Securities of the series
shall be denominated and the particular provisions applicable thereto in
accordance with, in addition to or in lieu of any of the provisions of
Section 312, including the manner of determining the equivalent thereof in
the currency of the United States of America for purposes of the definition
of "Outstanding" in Section 101;
(12) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method which index, formula or
method may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a currency or currencies, currency unit
or units or composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or periods
within which (including the Currency Election Date), and the terms and
conditions upon which, such election may be made, and the time and manner
of determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or currencies in
which such Securities are to be so payable, in each case in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
<PAGE>
22
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants (including any deletions from, modifications of or
additions to any of the provisions of Section 1010) of the Company with
respect to Securities of the series, whether or not such Events of Default
or covenants are consistent with the Events of Default or covenants set
forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and, if
Registered Securities of the series are to be issuable as a global
Security, the identity of the depository for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of the original issuance of the first
Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1302 and/or 1303 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Thirteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series)
<PAGE>
23
only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms of such
certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants or upon the conversion or exchange of other
securities, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether, under what circumstances and the currency or
currencies, currency unit or units or composite currency or currencies in
which, the Company will pay Additional Amounts as contemplated by Section
1004 on the Securities of the series to any Holder who is not a United
States person (including any modification to the definition of such term)
in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Securities rather
than pay such Additional Amounts (and the terms of any such option);
(23) the designation of the initial Exchange Rate Agent, if any;
(24) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirement of
the Trust Indenture Act).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of a series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) 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 Securities
of such series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued
<PAGE>
24
in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman of the Board, or one of its Vice
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
and coupons may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities and coupons.
Securities or 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 Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee upon receipt of and in accordance
with the Company Order shall authenticate and deliver such Securities; provided,
however, that, in connection with its original issuance, no Bearer Security
shall be mailed or otherwise delivered to any location in the United States; and
provided further that, unless otherwise specified with respect to any series of
Securities pursuant to Section 301, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate in the form set forth in
Exhibit A-1 to this Indenture, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If not all the Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures
<PAGE>
25
acceptable to the Trustee for the issuance of such Securities and determining
terms of particular Securities of such series, such as interest rate, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Sections 315(a) through 315(d)) shall
be fully protected in relying upon,
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute the legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities and any coupons; and
(ii) an Officers' Certificate stating, to the best of the knowledge
of the signers of such certificate, that no Event of Default with respect
to any of the Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee. Notwithstanding
the generality of the foregoing, the Trustee will not be
<PAGE>
26
required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
Each Registered Security shall be dated the date of its
authentication, and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of a Responsible Officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupon or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities. In
the case of Securities of any series, such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series, upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal
<PAGE>
27
amount of definitive Securities of the same series of authorized denominations;
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 shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities or any series are issued in global form,
any such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Temporary/Definitive Exchange Date"), the Company shall deliver
to the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company. On
or after the Temporary/Definitive Exchange Date, such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the
Temporary/Definitive Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Temporary/Definitive Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture (or in such other form as may be established
pursuant to Section 301); and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged
<PAGE>
28
for definitive Securities of the same series and of like tenor following the
Temporary/Definitive Exchange Date when the account holder instructs Euroclear
or CEDEL, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or CEDEL, as the case may be, a certificate in the form
set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Temporary/Definitive Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Temporary/Definitive Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear and
CEDEL to the Trustee of a certificate or certificates in the form set forth in
Exhibit A-2 to this Indenture (or in such other form as may be established
pursuant to Section 301), for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date and who have each delivered to Euroclear or CEDEL, as the case may be, a
certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Temporary/Definitive Exchange Date in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs of this Section and
of the third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Temporary/Definitive
Exchange Date or the date of certification if such date occurs after the
Temporary/Definitive Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal (or premium, if any) or interest owing with respect to a beneficial
interest in a temporary global Security will be made unless and until such
interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
CEDEL and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company.
<PAGE>
29
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers maintained
in the Corporate Trust Office of the Trustee and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securities. The
Security Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount, bearing a number not contemporaneously outstanding and containing
identical terms and provisions.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denomination and of a like aggregate principal amount, upon surrender
of the Registered Securities to be exchanged at such office or agency. Whenever
any Registered Securities are so 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. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted 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
<PAGE>
30
any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, 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.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the
<PAGE>
31
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and provided further that
no Bearer Security delivered in exchange for a portion of a permanent global
Security shall be mailed or otherwise delivered to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs 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 the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, 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
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is payable
in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities of that series under
Section 1103 or 1203 and ending at the close of business on (A) if Securities of
the series are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to
<PAGE>
32
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupons appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
<PAGE>
33
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen 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 Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights Preserved; Optional Interest
-----------------------------------------------------------------
Reset.
-----
(a) Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, 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 Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located in the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with respect
to that portion of such permanent global Security held for its account by the
Common Depositary, for the purpose of permitting each of Euroclear and CEDEL to
credit the interest received by it in respect of such permanent global Security
to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment
<PAGE>
34
Date and interest will not be payable on such Interest Payment Date in respect
of the Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereto on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 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 each Holder of Registered Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series
<PAGE>
35
after the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such proposed
date of payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed acceptable to the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 60 days prior to an Optional Reset Date for such Note. Not later than 40
days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or if there is no such next Optional Reset Date, to the Stated
Maturity Date of such Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) is
<PAGE>
36
reset on an Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to the next succeeding paragraph, will bear
such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Optional Extension of Maturity.
------------------------------
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate
<PAGE>
37
provided for in the Extension Notice and establish a higher interest rate for
the Extension Period by causing the Trustee to transmit, in the manner provided
for in Section 106, notice of such higher interest rate to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to
which the Stated Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Fifteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
Section 309. Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 305 and 307) 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, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee,
<PAGE>
38
from giving effect to any written certification, proxy or other authorization
furnished by any depositary, as a Holder, with respect to such global Security
or impair, as between such depositary and owners of beneficial interests in such
global Security, the operation of customary practices governing the exercise of
the rights of such depositary (or its nominee) as Holder of such global
Security.
Section 310. Cancellation.
------------
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and any such Securities and
coupons and Securities and coupons surrendered directly to the Trustee for any
such purpose shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee in its customary manner and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it within 30 days after such Securities have
been delivered to the Trustee for such purpose. The Trustee shall not be
required to hold cancelled Securities for more than one year.
Section 311. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 with
respect to Securities of any series, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 312. Currency and Manner of Payments in Respect of Securities.
--------------------------------------------------------
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any, on) and interest, if
any, on any Registered or Bearer Security of such series will be made in the
currency or currencies in which such Registered Security or Bearer Security, as
the case may be, is
<PAGE>
39
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (and
premium, if any, on) or interest, if any, on such Registered Securities in any
of the currencies, currency units or composite currencies which may be
designated for such election by delivering to the Trustee for such series of
Registered Securities a written election with signature guarantees and in the
applicable form established pursuant to Section 301, not later than the close of
business on the Currency Election Date immediately preceding the applicable
payment date. If a Holder so elects to receive such payments in any such
currency, currency unit or composite currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Currency 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 of 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 with respect to which the Company has deposited funds pursuant to
Article Four or Fourteen or with respect to which a notice of redemption has
been given by the Company or a notice of option to elect repayment has been sent
by such Holder or such transferee). Any Holder of any such Registered Security
who shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Currency Election Date will be paid the amount due on the applicable payment
date in the relevant currency or currencies as provided in Section 312(a). The
Trustee for each such series of Registered Securities shall notify the Exchange
Rate Agent as soon as practicable after the Currency Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Currency Election Date for each payment
date for Registered Securities of any series, the Exchange Rate Agent will
deliver to the Company a written notice specifying, in the currency or
currencies, currency unit or units or composite currency or currencies in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any, on) and interest, if any, on the
Registered Securities to be paid on such payment date, specifying the amounts in
such currency or currencies, currency unit or units or composite currency or
currencies so payable in respect of the Registered Securities as to which the
Holders of Registered Securities denominated in any currency or currencies,
currency unit or units or composite currency or currencies shall have elected to
be paid in another currency, currency unit or composite currency as provided in
paragraph (b) above. If the election referred to in paragraph (b) above has
been provided for pursuant to Section 301 and if at least one Holder has made
such election, then, unless otherwise specified pursuant to Section 301, on the
second
<PAGE>
40
Business Day preceding such payment date the Company will deliver to the Trustee
for such series of Registered Securities an Exchange Rate Officer's Certificate
in respect of the Dollar or Foreign Currency payments to be made on such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar, Foreign
Currency or currencies, ECU or currency unit amount receivable by Holders of
Registered Securities who have elected payment in a currency or currency unit as
provided in paragraph (b) 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, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Currency Conversion Event occurs with respect to a Foreign
Currency, the ECU or any other currency unit in which any of the Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any, on) and interest, if any, on the applicable
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 "Currency Conversion
Date"), the Dollar shall be the Currency of payment for use on each such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar amount to
be paid by the Company to the Trustee of each series of Securities and by the
Trustee or any Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency other than a
currency unit, 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 Exchange Rate Agent in the manner provided in paragraph (f) or
(g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security denominated in any currency or currencies, currency
unit or units or composite currency or currencies shall have elected to be paid
in another currency or currencies, currency unit or units or composite currency
or currencies as provided in paragraph (b) above, and a Currency Conversion
Event occurs with respect to such elected currency or currencies, currency unit
or units or composite currency or currencies, such Holder shall receive payment
in the currency or currencies, currency unit or units or composite currency or
currencies in which payment would have been made in the absence of such
election; and if a Currency Conversion Event occurs with respect to the currency
or currencies, currency unit or units or composite currency or currencies in
which payment would have been made in the absence of such election, such Holder
shall receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate 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 Currency Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of paragraph (h) below
shall be the sum of
<PAGE>
41
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.
(h) For purposes of this Section 312, the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the Currency
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 Currency Conversion Date. If after the Currency 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
Currency 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 Currency 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, having an aggregate Dollar Equivalent value at
the Market Exchange Rate on the date of such replacement equal to the
Dollar Equivalent value of the Specified Amount of such former Component
Currency at the Market Exchange Rate immediately before such division, and
such amounts shall thereafter be Specified Amounts and such currencies
shall thereafter be Component Currencies. If, after the Currency
Conversion Date of the relevant currency unit, including, but not limited
to, the ECU, a Currency Conversion Event (other than any event referred to
above in this definition of "Specified Amount") occurs with respect to any
Component Currency of such currency unit and is continuing on the
applicable Valuation Date, 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 Currency Conversion Date of such Component Currency.
"Currency Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause (13) of Section 301
by which the written election referred to in paragraph (b) above may be
made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market
<PAGE>
42
Exchange Rate and changes in the Specified Amounts as specified above 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, the
Trustee and all Holders of such Securities denominated or payable in the
relevant currency. The Exchange Rate Agent shall promptly give written notice
to the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a Currency
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and upon receipt thereof the Trustee will promptly thereafter give
notice in the manner provided for in Section 106 to the affected Holders)
specifying the Currency Conversion Date. In the event the Company so determines
that a Currency Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and upon receipt thereof the Trustee will promptly thereafter give
notice in the manner provided for in Section 106 to the affected Holders)
specifying the Currency Conversion Date and the Specified Amount of each
Component Currency on the Currency Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information.
Section 313. Appointment and Resignation of Successor Exchange Rate Agent.
------------------------------------------------------------
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a currency other
than Dollars or (ii) may be payable in a currency other than Dollars, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued currency into the applicable payment currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee.
<PAGE>
43
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies, currency unit or units or composite currency
or currencies).
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto and any right to receive Additional Amounts, as provided in Section
1004), and the Trustee, upon receipt of a Company Order, and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) 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 as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any Paying
Agent or segregated and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
<PAGE>
44
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the date of
such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 607, the obligations of the Company to any Authenticating Agent under
Section 611 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 402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent)
<PAGE>
45
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest, if any, for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to 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 or 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 Security of that
series or of any coupon appertaining thereto, when such interest or coupon
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 (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty or agreement of the Company in this Indenture which affects or is
applicable to the Securities of that series (other than a default in the
performance, or breach of a covenant or warranty or agreement which is
specifically dealt with elsewhere in this Section or which has expressly
been included in this Indenture solely for the benefit of one or more
series of Securities other than that 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 Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed in an aggregate principal amount exceeding
$20,000,000 by the Company or a Significant Bank (including a default with
respect to Securities of any series other than that series) or under any
mortgage, indenture or
<PAGE>
46
instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed in an aggregate principal
amount exceeding $20,000,000 by the Company or a Significant Bank
(including this Indenture), whether such indebtedness now exists or shall
hereafter be created, which default shall have resulted in such
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
acceleration having been rescinded or annulled within a period of 10 days
after there shall have 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 Securities of that
series a written notice specifying such default and requiring the Company
to cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; provided, however, that,
subject to the provisions of Sections 601 and 602, the Trustee shall not be
deemed to have knowledge of such default unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such default or (B)
the Trustee shall have received written notice thereof from the Company,
from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or a Significant Bank
in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company or a Significant Bank 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
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or a Significant Bank 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 for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company or a Significant Bank of a
voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Company or a Significant Bank in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or a Significant Bank or of any substantial part of
its property, or the making by it or an assignment for
<PAGE>
47
the benefit of 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 or a Significant Bank in furtherance of any
such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default described in clause (1), (2), (3), (4), (5) or
(8) of Section 501 with respect to Securities of any series at the 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 Securities
of that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified portion thereof)
shall become immediately due and payable. If an Event of Default described in
clause (6) or (7) of Section 501 occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of all
of the Securities then Outstanding may declare the principal amount (or, if any
such Securities are Original Issue Discount Securities or Indexed Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all of the Outstanding Securities to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by the
Holders) and upon any such declaration such principal amount (or specified
portion thereof) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):
(A) all overdue installments of interest, if any, on all
Outstanding Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
<PAGE>
48
declaration of acceleration and any interest thereon at the rate or
rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of (or premium, if any) or
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any installment of interest, if
any, on any Security of any series and any related coupon when such
interest becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities or such series and coupons, the whole amount then
due and payable on such Securities and coupons for principal (and premium, if
any) and interest, if any, with interest upon any overdue principal (and
premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts 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
<PAGE>
49
judgment or final decree, and may enforce the same against the Company or any
other obligor upon such Securities of such series 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 Securities of such
series, wherever situated.
If an Event of Default with respect to 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 Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding and, in particular: (i) to file and prove a claim for the whole
amount, or such lesser amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the holders allowed
in such judicial proceeding, and to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due to the Trustee or any predecessor Trustee under Section 606.
No provision of this Indenture and nothing contained herein shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of a Security or coupon in any such
<PAGE>
50
proceeding; provided, however, the Trustee may vote on behalf of the Holders for
the election of a trustee in bankruptcy or similar official and may be a member
of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest, if any, 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 aggregate amounts due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person or Persons entitled thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series or any related
coupon 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
<PAGE>
51
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that 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 security or
indemnity reasonably satisfactory to the Trustee 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
(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 Securities of that 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 of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any, and
Additional Amounts, if any) and (subject to Sections 305 and 307) interest, if
any, on such Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of a Security or coupon 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 of Securities and coupons 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.
<PAGE>
52
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities or coupons, as the case may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than 66-2/3% in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except
a default
<PAGE>
53
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding 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 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 514. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such default
hereunder known to a Responsible Officer of 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,
if any, on any Security of such series, or in the payment of any sinking or
purchase fund installment with respect to the Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any default
or breach of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For
<PAGE>
54
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 the Securities of such series.
Section 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Section 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel (confirmed in writing) 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 Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney;
<PAGE>
55
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for the supervision of or any misconduct or negligence on the part of any
such agent, attorney, custodian or nominee appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
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.
The rights and protections afforded to the Trustee by this Indenture
shall also be afforded to it to the extent applicable in its capacity as Paying
Agent, Security Registrar and Exchange Rate Agent, as the case may be.
Section 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 604. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, Paying Agent, Security
Registrar or other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to TIA Sections 310(b) and 311, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
<PAGE>
56
Section 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 606. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as has been agreed upon in writing (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 each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except to the extent any such expense, disbursement or
advance may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee (and
its officers, directors, employees and agents) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts 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,
except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any) or interest,
if any, on particular Securities or coupons.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 501(6) or (7) with respect to
the Company, the expenses are intended to constitute expenses of administration
under the Federal Bankruptcy Code.
Section 607. Corporate Trustee Required; Eligibility.
---------------------------------------
<PAGE>
57
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 608. 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 in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the 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 Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 607(a) and
shall fail to resign after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security for
at least six months, 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,
<PAGE>
58
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security 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 with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(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 Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its corporate trust office.
Section 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of all amounts owed to it pursuant to this Indenture, 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
<PAGE>
59
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 606. The retiring Trustee shall have no liability for any acts
or omissions of any successor Trustee.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (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 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 Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall, upon payment of all amounts owed to it pursuant to this
Indenture, duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) and (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 610. 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
<PAGE>
60
substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Securities or coupons shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities or coupons so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities. In case any
Securities or coupons shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such Securities
or coupons, 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 611. Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original Issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, a
copy of which instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be reasonably acceptable to the Company and, except
as may otherwise be provided pursuant to Section 301, shall at all times be a
bank or trust company or corporation organized and doing business and in good
standing under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
<PAGE>
61
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may resign at any
time by giving written notice of resignation to the Trustee for such series and
to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By _________________________________,
As Authenticating Agent
-----------------------
By _________________________________,
Authorized Officer
------------------
<PAGE>
62
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
Section 702. Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities as provided in TIA
Section 313(c) a brief report dated as of such May 15 if required by TIA Section
313(a).
Section 703. Reports by Company.
------------------
The Company will:
(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 such Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(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
<PAGE>
63
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), 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.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all the
Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, shares of Voting Stock of any Principal Bank
would become subject to a security interest which would not be permitted by
this Indenture, the Company or such successor Person, as the case may be,
shall take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness secured
thereby; and
<PAGE>
64
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to 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 Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect of any
<PAGE>
65
such additional Events of Default such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, 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 or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of 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 Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities pursuant to the requirements of Section
801, or otherwise; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (9)
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(10) 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 Sections 401, 1302 and
1303; provided that any such action shall
<PAGE>
66
not adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than 66-2/3% in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by or pursuant to 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 which
affect such series of Securities or of modifying in any manner the rights
of the Holders of Securities of such series and any related coupons under
this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security of
such series affected thereby,
(1) change the Stated Maturity of the principal of (or premium, if
any, on), or any installment of principal of or interest on, any Security;
or reduce the principal amount thereof or the rate of interest thereon, or
any premium payable upon the redemption thereof, or change any obligation
of the Company to pay Additional Amounts pursuant to Section 1004 (except
as contemplated by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any Place
of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the Holder, on
or after the Redemption Date or the Repayment Date, as the case may be), or
adversely affect any right to convert or exchange any Security as may be
provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture
which affect such series or certain defaults applicable to such series
hereunder and their consequences provided for in this Indenture, or reduce
the requirements of Section 1404 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series cannot
be modified or waived without the consent of the Holder of each Outstanding
Security of such series.
<PAGE>
67
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities 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 Securities of such series.
<PAGE>
68
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of such series of Securities and this Indenture. Any
interest due on Bearer Securities on or before Maturity, other than Additional
Amounts, if any, payable as provided in Section 1004 in respect of principal of
(or premium, if any, on) such a Security, shall be payable only upon
presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature. Unless otherwise specified
with respect to Securities of any series pursuant to Section 301, at the option
of the Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, 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.
Section 1002. Maintenance of Office or Agency.
-------------------------------
If Securities of a series are issuable only as Registered Securities,
the Company shall maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. If Securities
of a series are issuable as Bearer Securities, the Company will maintain (A) in
the Borough of Manhattan, The City 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 may be surrendered for
registration of transfer or exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, where notices and demands to or upon the Company in respect of the
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 Securities of that series and related coupons may be
presented and surrendered for payment; provided, however, that if the Securities
of that series are listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in
<PAGE>
69
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the 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 or exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of each such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices 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
Security, in London, England, and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and demands,
and the Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, 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 Securities of a series are payable in Dollars, payment of principal of (and
premium, if any) and interest, if any, on any Bearer Security shall be made at
the office of the Company's Paying Agent in the Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for such purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as Places of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office in the Borough of Manhattan, The City of New York as Paying Agent in each
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
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70
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
Section 1003. Money for 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 any Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
of (and premium, if any) and interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to each due date of
the principal of (or premium, if any) or interest, if any, on any Securities of
that series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (or premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company 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 sums.
Except, as otherwise provided in the Securities of any series, 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 (or premium, if any) or
interest, if any, on any Security of any series and remaining unclaimed for two
years after such principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal, premium
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71
or interest on any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 1004. Additional Amounts.
------------------
If any Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto Additional Amounts as may be specified as
contemplated by Section 301. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of (or premium, if any) or interest,
if any, on any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal, premium
or interest if there has been any change with respect to the matters set forth
in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal, premium or
interest on the Securities of that series shall be made to Holders of Securities
of that series or any related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities of that series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. In the event that the Trustee or any Paying Agent, as the case
may be, shall not so receive the above-mentioned certificate, then the Trustee
or such Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising
<PAGE>
72
otherwise and (ii) to make all payments of principal and interest with respect
to the Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section or in reliance on the Company's not furnishing such an Officers'
Certificate.
Section 1005. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of the conditions
or covenants of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
Section 1006. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1007. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
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73
Section 1008. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1009. Ownership of Voting Stock of Significant Banks.
----------------------------------------------
Subject to Article Eight, the Company will not sell or otherwise
dispose of, or grant a security interest in, or permit any Significant Bank to
issue, any shares of voting stock of such Significant Bank, unless the Company
will own free of any security interest at least 80% of the issued and
outstanding voting stock of such Significant Bank; provided, however, that the
foregoing shall not apply to (x) any such sale or disposition where the proceeds
therefrom are invested, within 90 days of such sale or disposition, in any
Subsidiary (including any corporation which upon such investment becomes a
Subsidiary) engaged in a banking business or any business legally permissible
for bank holding companies; provided, however, that if the proceeds are so
invested in any Subsidiary engaged in a business legally permissible for bank
holding companies other than a banking business, the Company shall not sell or
otherwise dispose of, or grant a security interest in, or permit such Subsidiary
to issue, any shares of voting stock of such Subsidiary to the same extent as if
such Subsidiary were a Significant Bank if, upon making such investment, the
assets of, or held for the account of, such Subsidiary constitutes 10% or more
of the consolidated assets of the Company or (y) any disposition in exchange for
the stock of any bank.
Section 1010. Waiver of Certain Covenants.
---------------------------
The Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition which
affects such series set forth in Section 801(3) or Sections 1007 to 1009,
inclusive, and, as specified pursuant to Section 301(15) for Securities of any
series, in any covenants of the Company added to Article Ten pursuant to Section
301(14) or Section 301(15), in connection with Securities of a series if before
the time for such compliance the Holders of at least 66-2/3% in principal amount
of all Outstanding Securities of any series, by Act of such Holders, waive such
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee to Holders of
Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
<PAGE>
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be redeemed
shall be selected in accordance with the terms of such Securities but, if not
specified, shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities of such series issued on such
date with the same terms not previously called for redemption, by the Trustee in
its customary manner, which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any 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 Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
<PAGE>
75
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 days nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified by the terms of such series established
pursuant to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(l) the Redemption Date,
(2) the Redemption Price and accrued interest to the Redemption Date
payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing
<PAGE>
76
subsequent to the date fixed for redemption or the amount of any such
missing coupon or coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee for
such series and any Paying Agent is furnished,
(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 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall if the same were interest-bearing cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the
<PAGE>
77
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that, installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and provided further that installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any 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 borne by the
Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part (pursuant
to the provisions of this Article or of Article Twelve) shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder 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 Security without service
charge, a new Security or Securities of the same series, 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 Security so
surrendered.
<PAGE>
78
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any mandatory sinking fund payment
with respect to the Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms of such series;
provided that such Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the applicable Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for
Securities of any series, 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 hereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the
<PAGE>
79
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance or
------------------------------------------------------------------
Covenant Defeasance.
-------------------
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of or within a series under Section 1302 or (b)
covenant defeasance of the Securities of or within a series under Section 1303,
then the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article (with such modifications thereto as
may be specified pursuant to Section 301 with respect to any Securities), shall
be applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have Section 1302 (if
applicable) or Section 1303 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any coupons appertaining thereto on the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1305 and the other
Sections of this Indenture referred to in clauses (A) and (B) of this Section,
and to have satisfied all its other obligations under such Securities and
<PAGE>
80
any coupons appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding
Securities and any coupons appertaining thereto to receive, solely from the
trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining thereto when
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1004, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this Article
Thirteen, the Company may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 1303 with respect to such
Securities and any coupons appertaining thereto.
Section 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Sections 1004 and 1005, and, if specified
pursuant to Section 301, its obligations under any other covenant, with respect
to such Outstanding Securities and any coupons appertaining thereto on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any coupons appertaining thereto
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 1004 and 1005, or such
other covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to such Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or an
Event of Default under Section 501(4) or 501(7) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of Section 1302
or Section 1303 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607
<PAGE>
81
who shall agree to comply with the provisions of this Article Thirteen
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any coupons
appertaining thereto, (1) an amount (in such currency, currencies or
currency unit in which such Securities and any coupons appertaining thereto
are then specified as payable at Stated Maturity), or (2) Government
Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are then specified
as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal of (and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto, money in an amount, or (3) a
combination thereof in an amount, 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, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium, if any)
and interest, if any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any coupons appertaining thereto on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 501(5) and 501(6) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts,
<PAGE>
82
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(e) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1302 or the covenant defeasance
under Section 1303 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1302 or Section 1303 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
---------------------------------------------------------------
Other Miscellaneous Provisions.
------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1305, the
"Trustee") pursuant to Section 1304 in respect of any Outstanding Securities of
any series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any coupons appertaining thereto 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 Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of 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.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1304(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b)
<PAGE>
83
or the terms of such Security to receive payment in a currency or currency unit
other than that in which the deposit pursuant to Section 1304(a) has been made
in respect of such Security, or (b) a Currency Conversion Event occurs as
contemplated in Section 312(d) or 312(e) or by the terms of any Security in
respect of which the deposit pursuant to Section 1304(a) has been made, the
indebtedness represented by such Security and any coupons appertaining thereto
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and interest, if
any, on such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the currency or currency unit in which such Security becomes payable as a
result of such election or Currency Conversion Event based on the applicable
Market Exchange Rate for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to a Currency
Conversion Event, for such currency or currency unit in effect (as nearly as
feasible) at the time of the Currency Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1304 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
Section 1306. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1302 or 1303, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1305; provided, however, that if the Company makes any
payment of principal of (or premium, if any, on) or interest on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
<PAGE>
84
ARTICLE FOURTEEN
Meetings of Holders of Securities
Section 1401. Purposes for Which Meetings May Be Called.
-----------------------------------------
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
Section 1402. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in the Borough of Manhattan, The City of New York
or in London as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1401, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
Section 1403. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
<PAGE>
85
Section 1404. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 1402(a), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of any adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities if that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1404, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
<PAGE>
86
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
Section 1405. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings.
--------
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
<PAGE>
87
Section 1406. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent 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, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
Repayment at the Option of Holders
Section 1501. Applicability of Article.
------------------------
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article.
Section 1502. Repayment of Securities.
-----------------------
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on
or before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and
<PAGE>
88
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of, and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
Section 1503. Exercise of Option.
------------------
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
Section 1504. When Securities Presented for Repayment Become Due and Payable.
--------------------------------------------------------------
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons, and provided
<PAGE>
89
further that, in the case of Registered Securities, installments of interest, if
any, whose Stated Maturity is on or prior to the Repayment Date shall be payable
(but without interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1502 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
Section 1505. Securities Repaid in Part.
-------------------------
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
<PAGE>
90
----------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
KEYCORP
By_________________________________________
Attest:
- ------------------------------
BANKERS TRUST COMPANY
By_________________________________________
Attest:
- ------------------------------
<PAGE>
STATE OF OHIO )
) ss.:
COUNTY OF CUYAHOGA )
On the ____ day of ____________, 1994, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is _____________________ of KeyCorp, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
- ----------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ____________, 1994, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that she is a Trust Officer of Bankers Trust Company, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
- ----------------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ____________, 1994, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is _____________________ of KeyCorp, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
- ----------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ____________, 1994, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is a Trust Officer of Bankers Trust Company, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
----------------------------
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States persons(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 2.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise [Name of Issuer] or its agent that such financial institution 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 regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the
owner is a United States or foreign financial institution described in clause
(iii) above (whether or not also described in clause (i) or (ii)), this is to
further certify that such financial institution has not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
<PAGE>
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 above-
captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]____________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in 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.
Dated:
[To be dated no earlier than the 15th
day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment
Date occurring prior to the Exchange
Date, as applicable]
[Name of Person Making
Certification]
-------------------------------------
(Authorized Signatory)
--------------------
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]__________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise [Name of Issuer] or its
agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)) and, to
A-2-1
<PAGE>
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) 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, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in 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.
Dated:
[To be dated no earlier than
the Exchange Date or the
relevant Interest Payment Date
occurring prior to the Exchange
Date, as applicable]
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear
System]
[CEDEL S.A.]
By
___________________________________________
A-2-2
<PAGE>
Exhibit 4(d)
- --------------------------------------------------------------------------------
KEYCORP
TO
BANKERS TRUST COMPANY,
Trustee
__________________
SUBORDINATED DEBT SECURITIES
__________________
INDENTURE
Dated as of _________, 1994
__________________
- --------------------------------------------------------------------------------
<PAGE>
KEYCORP
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(S)310 (a)(1).................................. 607(a)
(a)(2).................................. 607(a)
(b)..................................... 607(b), 608
(S)312 (c)..................................... 701
(S)314 (a)..................................... 703
(a)(4).................................. 1005
(c)(1).................................. 102
(c)(2).................................. 102
(e)..................................... 102
(S)315 (b)..................................... 601
(S)316 (a) (last sentence)..................... 101 ("Outstanding")
(a)(1)(A)............................... 502, 512
(a)(1)(B)............................... 513
(b)..................................... 508
(c)..................................... 104(e)
(S)317 (a)(1).................................. 503
(a)(2).................................. 504
(S)318 (a)..................................... 111
(c)..................................... 111
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS OF THE COMPANY................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions................................. 1
Section 102. Compliance Certificates and Opinions........ 13
Section 103. Form of Documents Delivered to Trustee...... 13
Section 104. Acts of Holders; Record Dates............... 14
Section 105. Notices, Etc. to Trustee and Company........ 15
Section 106. Notice to Holders; Waiver................... 16
Section 107. Effect of Headings and Table of Contents.... 17
Section 108. Successors and Assigns...................... 17
Section 109. Separability Clause......................... 17
Section 110. Benefits of Indenture....................... 17
Section 111. Governing Law............................... 17
Section 112. Legal Holidays.............................. 17
Section 113. Obligations of the Company Not Obligations
of the Trustee.............................. 18
ARTICLE TWO
Security Forms
Section 201. Forms Generally............................. 18
Section 202. Form of Trustee's Certificate of
Authentication.............................. 18
Section 203. Securities Issuable in Global Form.......... 19
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series........ 20
Section 302. Denominations............................... 24
Section 303. Execution, Authentication, Delivery and
Dating...................................... 24
Section 304. Temporary Securities........................ 26
Section 305. Registration, Registration of Transfer and
Exchange.................................... 29
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.................................. 32
</TABLE>
<PAGE>
ii
<TABLE>
<S> <C>
Section 307. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset.......... 33
Section 308. Optional Extension of Maturity.............. 36
Section 309. Persons Deemed Owners....................... 36
Section 310. Cancellation................................ 37
Section 311. Computation of Interest..................... 38
Section 312. Currency and Manner of Payments in Respect
of Securities............................... 38
Section 313. Appointment and Resignation of Successor
Exchange Rate Agent......................... 42
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture..... 42
Section 402. Application of Trust Money.................. 44
ARTICLE FIVE
Remedies
Section 501. Events of Default........................... 44
Section 502. Acceleration of Maturity; Rescission and
Annulment................................... 45
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...................... 46
Section 504. Trustee May File Proofs of Claim............ 48
Section 505. Trustee May Enforce Claims Without
Possession of Securities.................... 48
Section 506. Application of Money Collected.............. 49
Section 507. Limitation on Suits......................... 49
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest............. 50
Section 509. Restoration of Rights and Remedies.......... 50
Section 510. Rights and Remedies Cumulative.............. 50
Section 511. Delay or Omission Not Waiver................ 51
Section 512. Control by Holders.......................... 51
Section 513. Waiver of Past Defaults..................... 51
Section 514. Waiver of Stay or Extension Laws............ 52
</TABLE>
<PAGE>
iii
<TABLE>
<S> <C>
ARTICLE SIX
The Trustee
Section 601. Notice of Defaults.......................... 52
Section 602. Certain Rights of Trustee................... 52
Section 603. Not Responsible for Recitals or Issuance of
Securities.................................. 54
Section 604. May Hold Securities......................... 54
Section 605. Money Held in Trust......................... 54
Section 606. Compensation and Reimbursement.............. 54
Section 607. Corporate Trustee Required; Eligibility..... 55
Section 608. Resignation and Removal; Appointment of
Successor................................... 55
Section 609. Acceptance of Appointment by Successor...... 57
Section 610. Merger, Conversion, Consolidation or
Succession to Business...................... 58
Section 611. Appointment of Authenticating Agent......... 58
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Disclosure of Names and Addresses of Holders 60
Section 702. Reports by Trustee.......................... 60
Section 703. Reports by Company.......................... 61
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on
Certain Terms............................... 61
Section 802. Successor Substituted....................... 62
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of
Holders..................................... 62
Section 902. Supplemental Indentures with Consent of
Holders..................................... 64
Section 903. Execution of Supplemental Indentures........ 65
</TABLE>
<PAGE>
iv
<TABLE>
<S> <C>
Section 904. Effect of Supplemental Indentures........... 66
Section 905. Conformity with Trust Indenture Act......... 66
Section 906. Reference in Securities to Supplemental
Indentures.................................. 66
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.. 66
Section 1002. Maintenance of Office or Agency............. 67
Section 1003. Money for Securities Payments to Be Held in
Trust....................................... 68
Section 1004. Additional Amounts.......................... 69
Section 1005. Statement by Officers as to Default......... 70
Section 1006. Existence................................... 71
Section 1007. Maintenance of Properties................... 71
Section 1008. Payment of Taxes and Other Claims........... 71
Section 1009. Waiver of Certain Covenants................. 71
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.................... 72
Section 1102. Election to Redeem; Notice to Trustee....... 72
Section 1103. Selection by Trustee of Securities to Be
Redeemed.................................... 72
Section 1104. Notice of Redemption........................ 73
Section 1105. Deposit of Redemption Price................. 74
Section 1106. Securities Payable on Redemption Date....... 74
Section 1107. Securities Redeemed in Part................. 75
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.................... 76
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.................................. 76
Section 1203. Redemption of Securities for Sinking Fund... 76
</TABLE>
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<TABLE>
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance 77
Section 1302. Defeasance and Discharge.................... 77
Section 1303. Covenant Defeasance......................... 78
Section 1304. Conditions to Defeasance or Covenant
Defeasance.................................. 78
Section 1305. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions.................................. 80
Section 1306. Reinstatement............................... 81
ARTICLE FOURTEEN
Meetings of Holders of Securities
Section 1401. Purposes for Which Meetings May Be Called... 81
Section 1402. Call, Notice and Place of Meetings.......... 82
Section 1403. Persons Entitled to Vote at Meetings........ 82
Section 1404. Quorum; Action.............................. 82
Section 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings..................... 84
Section 1406. Counting Votes and Recording Action of
Meetings.................................... 84
ARTICLE FIFTEEN
Conversion of Securities
Section 1501. Applicability of Article.................... 85
Section 1502. Right of Holders to Convert Securities...... 85
Section 1503. Issuance of Shares of Common Stock on
Conversions................................. 86
Section 1504. No Payment or Adjustment for Interest or
Dividends................................... 87
Section 1505. Adjustment of Conversion Price.............. 87
Section 1506. No Fractional Shares to Be Issued........... 92
Section 1507. Preservation of Conversion Rights upon
Consolidation, Merger, Sale or Conveyance... 92
Section 1508. Notice to Holders of the Securities of a
Series Prior to Taking Certain Types of
Action...................................... 93
</TABLE>
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vi
<TABLE>
<S> <C>
Section 1509. Covenant to Reserve Shares for Issuance
on Conversion of Securities................. 94
Section 1510. Compliance with Governmental Requirements... 94
Section 1511. Payment of Taxes upon Certificates for
Shares Issued upon Conversion............... 94
Section 1512. Trustee's Duties with Respect to Conversion
Provisions.................................. 95
ARTICLE SIXTEEN
Subordination of Securities
Section 1601. Securities Subordinate to Senior
Indebtedness................................ 95
Section 1602. Payment Over of Proceeds upon Dissolution,
Etc. ....................................... 95
Section 1603. No Payment When Senior Indebtedness in
Default..................................... 97
Section 1604. Payment Permitted if No Default............. 97
Section 1605. Subrogation to Rights of Holders of Senior
Indebtedness................................ 98
Section 1606. Provisions Solely to Define Relative Rights. 98
Section 1607. Trustee to Effectuate Subordination and
Payment Provisions.......................... 98
Section 1608. No Waiver of Subordination Provisions....... 99
Section 1609. Notice to Trustee........................... 99
Section 1610. Reliance on Judicial Order or Certificate
of Liquidating Agent........................ 100
Section 1611. Trustee Not Fiduciary for Holders of Senior
Indebtedness or Entitled Persons............ 100
Section 1612. Rights of Trustee as Holder of Senior
Indebtedness or Entitled Person;
Preservation of Trustee's Rights............ 100
Section 1613. Article Applicable to Paying Agents......... 101
Section 1614. Relationship to Existing Subordinated
Indebtedness; Payment of Excess Proceeds in
Certain Cases............................... 101
ARTICLE SEVENTEEN
Repayment at the Option of Holders
Section 1701. Applicability of Article.................... 103
Section 1702. Repayment of Securities..................... 103
Section 1703. Exercise of Option.......................... 103
Section 1704. When Securities Presented for Repayment
Become Due and Payable...................... 104
Section 1705. Securities Repaid in Part................... 105
</TABLE>
<PAGE>
vii
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
FORMS OF CERTIFICATION
<PAGE>
INDENTURE, dated as of ___________, 1994, between KeyCorp, a
corporation duly organized and existing under the laws of the State of Ohio
(herein called the "Company"), having its principal office at 127 Public Square,
Cleveland, Ohio 44114, and Bankers Trust Company, a New York banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, 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 principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
<PAGE>
2
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that
<PAGE>
3
Place of Payment or particular location are authorized or obligated by law or
executive order to close.
"Capital Stock" means, as to shares of a particular corporation,
outstanding shares of stock of any class whether now or hereafter authorized,
irrespective of whether such class shall be limited to a fixed sum or percentage
in respect of the rights of the holders thereof to participate in dividends and
in the distribution of assets upon the voluntary liquidation, dissolution or
winding up of such corporation.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
its successor.
"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 at such time.
"Common Stock" means the Common Shares of the Company with a par value
of $1.00 each.
"Common Depositary" has the meaning specified in Section 304(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means, respectively, a written
request or order signed in the name of the Company by a Chairman of the Board, a
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee in accordance with Section 105 hereof.
"Component Currency" has the meaning specified in Section 312(h).
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at Four Albany Street, New York, New York 10006, Attn: Corporate
Trust and Agency Group.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency Conversion Date" has the meaning specified in Section
312(d).
<PAGE>
4
"Currency Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country which issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU 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 (or composite currency) other than the ECU for the
purposes for which it was established.
"Currency Election Date" has the meaning specified in Section 312(h).
"Currency Indexed Note" means any Security with the amount of
principal payments determined by reference to an index currency.
"Default" has the meaning specified in Section 503.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global Securities, the
clearing agency registered under the Exchange Act specified for that purpose as
contemplated by Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 312(f).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Entitled Persons" means any Person entitled to payment pursuant to
the terms of Other Senior Obligations.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, 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.
<PAGE>
5
"Event of Default" has the meaning specified in Article V.
"Excess Proceeds" has the meaning specified in Section 1614(c).
"Exchange Act" means the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"Exchange Rate Agent", with respect to Securities of or within any
series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate setting
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant currency or currency unit), payable with respect to
a Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Existing Subordinated Indebtedness" means all indebtedness for
borrowed money of the Company under its 8.40% Subordinated Capital Notes due
April 1, 1999, 8.125% Subordinated Notes due June 15, 2002, 8.00% Subordinated
Notes due July 1, 2004, Subordinated Medium-Term Notes, Series IV due from 1998
to 2003 and Adjustable Rate Convertible Subordinated Debentures due 2004, and
any renewals, extensions, modifications and refundings of any such indebtedness.
"Extension Notice" has the meaning specified in Section 308.
"Extension Period" has the meaning specified in Section 308.
"Final Maturity" has the meaning specified in Section 308.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"Foreign Currency Note" means any Security denominated in one or more
Foreign Currencies.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the 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 of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
<PAGE>
6
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such government, which, in either case, 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 Government Obligation or a specific payment of interest on
or principal of any such 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 Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of a particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"indebtedness for money borrowed" means the principal of (and
premium, if any) and interest on (a) all indebtedness of the Company (including
indebtedness of others guaranteed by the Company), whether outstanding on the
date of this Indenture or thereafter created, incurred, assumed or guaranteed,
which is for money borrowed and (b) any renewals, extensions, modifications and
refundings of any such indebtedness.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
<PAGE>
7
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Major Bank" means any directly or indirectly owned banking subsidiary
of the Company, the consolidated assets of which constitute 75 percent or more
of the consolidated total assets of the Company.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any other Foreign Currency on the
other, the exchange rate between the relevant currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 301 for
the Securities of the relevant series, (ii) for any conversion of Dollars into
any Foreign Currency, the noon 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 other principal
market for Dollars of such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent 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 any 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 Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate 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 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 Security, means the date on
which the principal of such 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, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee in accordance with
Section 105 hereof. One of the officers signing an Officers' Certificate given
pursuant to Section 1005 shall be the principal executive, financial or
accounting officer of the Company.
<PAGE>
8
"Old KeyCorp" means KeyCorp, a New York corporation, that was merged
with and into Society Corporation, an Ohio corporation, on March 1, 1994.
"Old KeyCorp Subordinated Indentures" means (a) the Indenture dated as
of January 1, 1985 entered into between Old KeyCorp and Chemical Bank, as
supplemented by the First Supplemental Indenture dated as of December 31, 1989
entered into between Old KeyCorp and Chemical Bank, the Second Supplemental
Indenture dated as of June 29, 1992 entered into between Old KeyCorp and
Chemical Bank, the Third Supplemental Indenture dated as of November 19, 1992
entered into between Old KeyCorp and Chemical Bank and the Fourth Supplemental
Indenture dated as of March 1, 1994 entered into among Old KeyCorp, Society
Corporation and Chemical Bank, and (b) the Indenture dated as of March 1, 1987
entered into between Old KeyCorp and Chemical Bank, as supplemented by the First
Supplemental Indenture dated as of March 1, 1994 entered into among KeyCorp,
Society Corporation and Chemical Bank.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of the Company or other counsel for the Company, or other counsel
acceptable to the Trustee.
"Optional Reset Date" has the meaning specified in Section 307(b).
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Original Stated Maturity" has the meaning specified in Section 308.
"Other Senior Obligations" means any obligation of the Company to its
creditors, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed, incurred or guaranteed, except (i) indebtedness on
account of Senior Indebtedness, (ii) indebtedness on account of all Securities
issued under this Indenture, indebtedness on account of all Existing
Subordinated Indebtedness and all indebtedness which specifically by its terms
ranks equally with and not prior to the Securities or any of the Existing
Subordinated Indebtedness in right of payment upon the happening of any event of
the kind specified in the first sentence of the first paragraph of Section 1602
and (iii) indebtedness which specifically by its terms ranks junior to and not
equally with or prior to indebtedness referred to in clause (ii) above in right
of payment upon the happening of any event of the kind specified in the first
sentence of the first paragraph of Section 1602.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
<PAGE>
9
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Securities and on coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1302 and
1303, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Thirteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the 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 making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is
<PAGE>
10
not the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest, if any, on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to the any Security to
be repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Reset Notice" has the meaning specified in Section 307(b).
<PAGE>
11
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the Corporate Trust and Agency Group (or any successor group
thereto) of the Trustee, including any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (a) all indebtedness of the Company for money borrowed, whether
outstanding on the date of execution of this Indenture or thereafter created,
assumed, incurred or guaranteed, except (i) indebtedness on account of all
Securities issued under this Indenture, indebtedness on account of all Existing
Subordinated Indebtedness and all indebtedness which specifically by its terms
ranks equally with and not prior to the Securities or any of the Existing
Subordinated Indebtedness in right of payment upon the happening of any event of
the kind specified in the first paragraph of Section 1602 and (ii) indebtedness
which specifically by its terms ranks junior to and not equally with or prior to
indebtedness referred to in clause (i) above in right of payment upon the
happening of any event of the kind specified in the first paragraph of Section
1602 and (b) any renewals, extensions, modifications and refundings of any such
Senior Indebtedness.
"Society Subordinated Indenture" means the Indenture dated as of June
15, 1992 entered into between Society Corporation and Morgan Guaranty Trust
Company of New York, as supplemented by the First Supplemental Indenture dated
as of December 15, 1992 entered into between Society Corporation and Morgan
Guaranty Trust Company of New York.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Specified Amount" has the meaning specified in Section 312(h).
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such
<PAGE>
12
Security or such installment of principal or interest is due and payable, as
such date may be extended pursuant to the provisions of Section 308.
"Subsequent Interest Period" has the meaning specified in Section
307(b).
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
having voting power for the election of directors, whether at all times or only
so long as no senior class of stock has such voting power by reason of any
contingency.
"Temporary/Definitive Exchange Date" has the meaning specified in
Section 304(b).
"Trading Day" has the meaning specified in Section 1505(e).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is 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 312(c).
"Vice President", when used with respect to the Company, means any
vice president, whether or not designated by a number or a word or words added
before or after the title "vice president".
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on
<PAGE>
13
such Security) and as set forth in such Security in accordance with generally
accepted United States bond yield computation principles.
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant 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
certificate or opinion 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 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 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel,
or a certificate 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 Opinion of Counsel
or certificates or
<PAGE>
14
representations of counsel may be based, insofar as they relate to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information as to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or more
series, as the case may be, 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 agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders
of Securities of such series duly called and held in accordance with the
provisions of Article Fourteen, or a combination of such instruments and
any such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section
1406.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make,
give or take, by a proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders,
and a Depositary that is a Holder of a Global Security may provide its
proxy or proxies to the beneficial owners of interest in any such Global
Security.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
<PAGE>
15
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and
the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer outstanding. The ownership of Bearer
Securities may also be proved in any other manner that the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be done
by the Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
Section 105. Notices, Etc. to Trustee and Company.
------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(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 and Agency Group, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
<PAGE>
16
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered Securities 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 of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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
<PAGE>
17
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Section 107. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 109. Separability Clause.
-------------------
In case any provision in this Indenture or in any Security 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 110. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 111. Governing Law.
-------------
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York. This Indenture
is subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
Section 112. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security or coupon
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section), payment of principal
(or premium, if any) or interest, if any, need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or
at the Stated Maturity or Maturity, provided that no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
<PAGE>
18
Section 113. Obligations of the Company Not Obligations of the Trustee.
---------------------------------------------------------
Notwithstanding anything contained in this Indenture to the contrary,
in no event shall Bankers Trust Company have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Company hereunder or in any of the certificates, notices or agreements of the
Company delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Company, and under no circumstances shall Bankers
Trust Company be personally liable for the payment of any indebtedness or
expenses of the Company; provided, however, that nothing in this Section shall
affect obligations of the Company to the Trustee as set forth in Section 606,
subject to the exceptions thereto and limitations thereon.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Registered Securities, if any, of such series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established in one or more indentures supplemental hereto
or approved from time to time by or pursuant to a Board Resolution in accordance
with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, 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 stock exchange on which the Securities may be
listed, or to conform to usage. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 611, the Trustee's certificates of authentication
shall be in substantially the following form:
<PAGE>
19
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By
-----------------------------------
Authorized Officer
Section 203. Securities Issuable in Global Form.
----------------------------------
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (8) of
Section 301 and the provisions of Section 302, any such Security shall represent
such of the Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 303 or 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an additional Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the
<PAGE>
20
Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officer's Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1705;
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which such interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
<PAGE>
21
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be
payable, where any Registered Securities of the series may be surrendered
for registration of transfer, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange,
as applicable, and where notices or demands to or upon the Company in
respect of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series may be redeemed, in whole on in part, at the option of the
Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than denominations
of $5,000, the denomination or denominations in which any Bearer Securities
of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(11) if other than Dollars, the currency or currencies, currency unit
or units or composite currency or currencies in which payment of the
principal of (and premium, if any) or interest, if any, on the Securities
of the series shall be payable or in which the Securities of the series
shall be denominated and the particular provisions applicable thereto in
accordance with, in addition to or in lieu of any of the provisions of
Section 312, including the manner of determining the equivalent thereof in
the currency of the United States of America for purposes of the definition
of "Outstanding" in Section 101;
(12) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method which index, formula or
method may be based,
<PAGE>
22
without limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a currency or currencies, currency unit
or units or composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or periods
within which (including the Currency Election Date), and the terms and
conditions upon which, such election may be made, and the time and manner
of determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or currencies in
which such Securities are to be so payable, in each case in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants (including any deletions from, modifications of or
additions to any of the provisions of Section 1009) of the Company with
respect to Securities of the series, whether or not such Events of Default
or covenants are consistent with the Events of Default or covenants set
forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and, if
Registered Securities of the series are to be issuable as a global
Security, the identity of the depository for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of the original issuance of the first
Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one
<PAGE>
23
or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, the manner in which, or the
Person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or
the manner in which, any interest payable on a temporary global Security on
an Interest Payment Date will be paid if other than in the manner provided
in Section 304;
(19) the applicability, if any, of Sections 1302 and/or 1303 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Thirteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants or upon the conversion or exchange of other
securities, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether, under what circumstances and the currency or
currencies, currency unit or units or composite currency or currencies in
which, the Company will pay Additional Amounts as contemplated by Section
1004 on the Securities of the series to any Holder who is not a United
States person (including any modification to the definition of such term)
in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Securities rather
than pay such Additional Amounts (and the terms of any such option);
(23) the designation of the initial Exchange Rate Agent, if any;
(24) if the Securities of the series are to be exchangeable for any
securities of any Person (including the Company), the terms and conditions
upon which such Securities will be so exchangeable and the applicability,
if any, of Article Fifteen to the Securities of the series and any
provisions in modification of, in addition to or in lieu of any of the
provisions of Article Fifteen, and;
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirements of
the Trust Indenture Act).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
<PAGE>
24
If any of the terms of the Securities of a series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) 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 Securities
of such series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global
form (which may be of any denomination) shall be issuable in denominations of
$1,000 and any integral multiple thereof, and the Bearer Securities of such
series, other than Bearer Securities issued in global form (which may be of any
denomination), shall be issuable in a denomination of $5,000.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman of the Board, or one of its Vice
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
and coupons may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities and coupons.
Securities or 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 Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee upon receipt of and in accordance
with the Company Order shall authenticate and deliver such Securities; provided,
however, that, in connection with its original issuance, no Bearer Security
shall be mailed or otherwise delivered to any location in the United States; and
provided further that, unless otherwise specified with respect to any series of
Securities pursuant to Section 301, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate in the form set forth in
Exhibit A-1 to this Indenture, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. If
any Security
<PAGE>
25
shall be represented by a permanent global Bearer Security, then, for purposes
of this Section and Section 304, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange of a portion of
a temporary global Security shall be deemed to be delivery in connection with
its original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. If not all the
Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series, such as interest rate, maturity date, date of issuance and date
from which interest shall accrue. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to TIA
Sections 315(a) through 315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute the legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities and any coupons; and
(ii) an Officers' Certificate stating, to the best of the knowledge
of the signers of such certificate, that no Event of Default with respect
to any of the Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
<PAGE>
26
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee. Notwithstanding
the generality of the foregoing, the Trustee will not be required to
authenticate Securities denominated in a Foreign Currency if the Trustee
reasonably believes that it would be unable to perform its duties with respect
to such Securities.
Each Registered Security shall be dated the date of its
authentication, and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of a Responsible Officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupon or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities. In
the case of Securities of any series, such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series, upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
<PAGE>
27
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; 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 shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities or any series are issued in global form,
any such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Temporary/Definitive Exchange Date"), the Company shall deliver
to the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company. On
or after the Temporary/Definitive Exchange Date, such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the
Temporary/Definitive Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Temporary/Definitive Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture (or in such other form as may be established
pursuant to Section 301); and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the
<PAGE>
28
Temporary/Definitive Exchange Date when the account holder instructs Euroclear
or CEDEL, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or CEDEL, as the case may be, a certificate in the form
set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Temporary/Definitive Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Temporary/Definitive Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear and
CEDEL to the Trustee of a certificate or certificates in the form set forth in
Exhibit A-2 to this Indenture (or in such other form as may be established
pursuant to Section 301), for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date and who have each delivered to Euroclear or CEDEL, as the case may be, a
certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Temporary/Definitive Exchange Date in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs of this Section and
of the third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Temporary/Definitive
Exchange Date or the date of certification if such date occurs after the
Temporary/Definitive Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal (or premium, if any) or interest owing with respect to a beneficial
interest in a temporary global Security will be made unless and until such
interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
CEDEL and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company.
<PAGE>
29
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers maintained
in the Corporate Trust Office of the Trustee and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securities. The
Security Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount, bearing a number not contemporaneously outstanding and containing
identical terms and provisions.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denomination and of a like aggregate principal amount, upon surrender
of the Registered Securities to be exchanged at such office or agency. Whenever
any Registered Securities are so 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. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted 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 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,
<PAGE>
30
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, 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.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and provided further that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency
<PAGE>
31
where such exchange occurs 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 the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, 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
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is payable
in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities of that series under
Section 1103 or 1203 and ending at the close of business on (A) if Securities of
the series are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
<PAGE>
32
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupons appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen 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 Securities of that series and their
coupons, if any, duly issued hereunder.
<PAGE>
33
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights Preserved; Optional Interest
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(a) Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, 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 Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located in the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with respect
to that portion of such permanent global Security held for its account by the
Common Depositary, for the purpose of permitting each of Euroclear and CEDEL to
credit the interest received by it in respect of such permanent global Security
to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereto on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
<PAGE>
34
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 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 each Holder of Registered Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed acceptable to the Trustee.
<PAGE>
35
(b) The provisions of this Section 307(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 60 days prior to an Optional Reset Date for such Note. Not later than 40
days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or if there is no such next Optional Reset Date, to the Stated
Maturity Date of such Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or
<PAGE>
36
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 308. Optional Extension of Maturity.
------------------------------
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Seventeen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
Section 309. Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person
<PAGE>
37
in whose name such Registered Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 305 and 307) 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, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
Section 310. Cancellation.
------------
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and any such Securities and
coupons and Securities and coupons surrendered directly to the Trustee for any
such purpose shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee, in its customary manner and the
<PAGE>
38
Trustee shall deliver a certificate of such destruction to the Company, unless
by a Company Order the Company directs their return to it within 30 days after
such securities have been delivered to the Trustee for such purpose. The
Trustee shall not be required to hold cancelled securities for more than one
year.
Section 311. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 with
respect to Securities of any series, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 312. Currency and Manner of Payments in Respect of Securities.
--------------------------------------------------------
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any, on) and interest, if
any, on any Registered or Bearer Security of such series will be made in the
currency or currencies in which such Registered Security or Bearer Security, as
the case may be, is payable. The provisions of this Section 312 may be modified
or superseded with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (and
premium, if any, on) or interest, if any, on such Registered Securities in any
of the currencies, currency units or composite currencies which may be
designated for such election by delivering to the Trustee for such series of
Registered Securities a written election with signature guarantees and in the
applicable form established pursuant to Section 301, not later than the close of
business on the Currency Election Date immediately preceding the applicable
payment date. If a Holder so elects to receive such payments in any such
currency, currency unit or composite currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Currency 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 of 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 with respect to which the Company has deposited funds pursuant to
Article Four or Fourteen or with respect to which a notice of redemption has
been given by the Company or a notice of option to elect repayment has been sent
by such Holder or such transferee). Any Holder of any such Registered Security
who shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Currency Election Date will be paid the amount due on the applicable payment
date in the relevant currency or currencies as provided in Section 312(a). The
Trustee for each such series of Registered Securities shall notify the Exchange
Rate Agent as soon as practicable after the Currency Election Date
<PAGE>
39
of the aggregate principal amount of Registered Securities for which Holders
have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Currency Election Date for each payment
date for Registered Securities of any series, the Exchange Rate Agent will
deliver to the Company a written notice specifying, in the currency or
currencies, currency unit or units or composite currency or currencies in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any, on) and interest, if any, on the
Registered Securities to be paid on such payment date, specifying the amounts in
such currency or currencies, currency unit or units or composite currency or
currencies so payable in respect of the Registered Securities as to which the
Holders of Registered Securities denominated in any currency or currencies,
currency unit or units or composite currency or currencies shall have elected to
be paid in another currency, currency unit or composite currency as provided in
paragraph (b) above. If the election referred to in paragraph (b) above has
been provided for pursuant to Section 301 and if at least one Holder has made
such election, then, unless otherwise specified pursuant to Section 301, on the
second Business Day preceding such payment date the Company will deliver to the
Trustee for such series of Registered Securities an Exchange Rate Officer's
Certificate in respect of the Dollar or Foreign Currency payments to be made on
such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar, Foreign Currency or currencies, ECU or currency unit amount receivable
by Holders of Registered Securities who have elected payment in a currency or
currency unit as provided in paragraph (b) 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, and such determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) If a Currency Conversion Event occurs with respect to a Foreign
Currency, the ECU or any other currency unit in which any of the Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any, on) and interest, if any, on the applicable
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 "Currency Conversion
Date"), the Dollar shall be the Currency of payment for use on each such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar amount to
be paid by the Company to the Trustee of each series of Securities and by the
Trustee or any Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency other than a
currency unit, 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 Exchange Rate Agent in the manner provided in paragraph (f) or
(g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security denominated in any currency or currencies, currency
unit or units or
<PAGE>
40
composite currency or currencies shall have elected to be paid in another
currency or currencies, currency unit or units or composite currency or
currencies as provided in paragraph (b) above, and a Currency Conversion Event
occurs with respect to such elected currency or currencies, currency unit or
units or composite currency or currencies, such Holder shall receive payment in
the currency or currencies, currency unit or units or composite currency or
currencies in which payment would have been made in the absence of such
election; and if a Currency Conversion Event occurs with respect to the currency
or currencies, currency unit or units or composite currency or currencies in
which payment would have been made in the absence of such election, such Holder
shall receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate 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 Currency Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of paragraph (h) 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.
(h) For purposes of this Section 312, the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the Currency
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 Currency Conversion Date. If after the Currency 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
Currency 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 Currency 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, having an aggregate Dollar Equivalent value at
the Market Exchange Rate on the date of such replacement equal to the
Dollar Equivalent value of the Specified Amount of such former Component
Currency at the Market Exchange Rate immediately before such
<PAGE>
41
division, and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after the
Currency Conversion Date of the relevant currency unit, including, but not
limited to, the ECU, a Currency Conversion Event (other than any event
referred to above in this definition of "Specified Amount") occurs with
respect to any Component Currency of such currency unit and is continuing
on the applicable Valuation Date, 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 Currency Conversion Date of such Component Currency.
"Currency Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause (13) of Section 301
by which the written election referred to in paragraph (b) above may be
made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above 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, the Trustee and all Holders of such Securities denominated or payable
in the relevant currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a Currency
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and upon receipt thereof the Trustee will promptly thereafter give
notice in the manner provided for in Section 106 to the affected Holders)
specifying the Currency Conversion Date. In the event the Company so determines
that a Currency Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and upon receipt thereof the Trustee will promptly thereafter give
notice in the manner provided for in Section 106 to the affected Holders)
specifying the Currency Conversion Date and the Specified Amount of each
Component Currency on the Currency Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information.
<PAGE>
42
Section 313. Appointment and Resignation of Successor Exchange Rate Agent.
------------------------------------------------------------
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a currency other
than Dollars or (ii) may be payable in a currency other than Dollars, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued currency into the applicable payment currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies, currency unit or units or composite currency
or currencies).
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto and any right to receive Additional Amounts, as provided in Section
1004), and the Trustee, upon receipt of a Company Order, and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
(1) either
<PAGE>
43
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) 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 as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any Paying
Agent or segregated and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the date of
such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
<PAGE>
44
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 607, the obligations of the Company to any Authenticating Agent under
Section 611 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 402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
or received by the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Thirteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order under any
applicable Federal or State law appointing a receiver or other similar
official (other than a conservator) of a Major Bank or (C) 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 custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
substantially all of its assets (other than the appointment of a
conservator with respect to any depository institution Subsidiary of the
Company insured by the FDIC) or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
<PAGE>
45
(2) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property (other
than the appointment of a conservator with respect to any depository
institution Subsidiary of the Company insured by the FDIC), or the making
by it of an assignment for the benefit of 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
(3) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default described in clause (1) or (2) of Section
501 occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of all of the Securities
then Outstanding may declare the principal amount (or, if any such
Securities are Original Issue Discount Securities or Indexed Securities,
such portion of the principal amount as may be specified in the terms of
that series) of all of the Outstanding Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by the Holders) and upon any such declaration such principal amount
(or specified portion thereof) shall become immediately due and payable.
If an Event of Default described in clause (3) of Section 501 with respect
to Securities of any series at the 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 Securities of that series
may declare the principal amount (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of
the principal amount as may be specified in the terms of that series) of
all of the Securities of that series to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified
portion thereof) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
<PAGE>
46
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):
(A) all overdue installments of interest, if any, on all
Outstanding Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of (or premium, if any) or
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) an Event of Default with respect to any Security of any series
shall occur,
(2) default is made in the payment of any installment of interest, if
any, on any Security of any series and any related coupon when
such interest becomes due and payable and such default continues
for a period of 30 days (whether or not such payment is then
prohibited by Article XVI),
<PAGE>
47
(3) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof (whether or not
such payment is then prohibited by Article XVI),
(4) 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 any Security,
(5) default is made in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of series of Securities other than that series) and continuance
of such default or breach for a period of 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 Securities of
that series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder, or
(6) any other default provided with respect to a Security of that
series is made (each a "Default"),
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities of such series and any related coupons, the whole
amount then due and payable on such Securities and any related coupons for
principal, including any sinking fund payment or analogous obligations (and
premium, if any), and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal (and premium, if
any) and on any overdue interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts 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, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If a Default with respect to Securities of any series (or all series,
as the case may be) shall occur and be continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or all series, as the case may be) and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
<PAGE>
48
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding and, in particular: (i) to file and prove a claim for the whole
amount, or such lesser amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the holders allowed
in such judicial proceeding, and to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due to the Trustee or any predecessor Trustee under Section 606.
No provision of this Indenture and nothing contained herein shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of a Security or coupon in any such proceeding;
provided, however, the Trustee may vote on behalf of the Holders for the
election of a trustee in bankruptcy or similar official and may be a member of a
creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the 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
<PAGE>
49
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Subject to Article Sixteen, 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 (or premium, if any) or interest, if any, upon presentation
of the Securities or coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest, if any, 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 aggregate amounts due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person or Persons entitled thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series or any related
coupon 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 Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee 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
<PAGE>
50
(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 Securities of that 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 of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
- ---------
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any, and
Additional Amounts, if any) and (subject to Sections 305 and 307) interest, if
any, on such Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of a Security or coupon 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 of Securities and coupons shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
<PAGE>
51
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities or coupons, as the case may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than 66 2/3% in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding 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 this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
<PAGE>
52
Section 514. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such default
hereunder known to a Responsible Officer of 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,
if any, on any Security of such series, or in the payment of any sinking or
purchase fund installment with respect to the Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any default
or breach of the character specified in Section 503(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 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, a Default with respect to the Securities of such
series.
Section 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Section 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
<PAGE>
53
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel (confirmed in writing) 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 Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for the supervision of or any misconduct or negligence on the part of any
such agent, attorney, custodian or nominee appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
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.
<PAGE>
54
The rights and protections afforded to the Trustee by this Indenture
shall also be afforded to it to the extent applicable in its capacity as Paying
Agent, Security Registrar and Exchange Rate Agent, as the case may be.
Section 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 604. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, Paying Agent, Security
Registrar or other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to TIA Sections 310(b) and 311, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 606. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as has been agreed upon in writing (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 each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel),
<PAGE>
55
except to the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee (and
its officers, directors, employees and agents) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts 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,
except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any) or interest,
if any, on particular Securities or coupons.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of an Event of Default specified in Section 501(1) or (2) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Federal Bankruptcy Code.
Section 607. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 608. 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 in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the 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
<PAGE>
56
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 Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 607(a) and
shall fail to resign after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security for
at least six months, 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 or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security 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 with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(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 Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six
<PAGE>
57
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of all amounts owed to it pursuant to this Indenture, 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 606. The retiring Trustee shall have no liability for any acts or
omissions of any successor Trustee.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (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 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 Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
<PAGE>
58
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall, upon payment of all amounts owed to it pursuant to this
Indenture, duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) and (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 610. 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 the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities. In case any Securities or coupons shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Securities or coupons, 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 611. Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, a
copy of which instrument shall be promptly furnished to the
<PAGE>
59
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be reasonably acceptable to the Company and,
except as may otherwise be provided pursuant to Section 301, shall at all times
be a bank or trust company or corporation organized and doing business and in
good standing under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may resign at any
time by giving written notice of resignation to the Trustee for such series and
to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
<PAGE>
60
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By ,
-------------------------------
As Authenticating Agent
-----------------------
By ,
-------------------------------
Authorized Officer
------------------
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Disclosure of Names and Addresses of Holders.
---------------------------------------------
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
Section 702. Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities as provided in TIA
Section 313(c) a brief report dated as of such May 15 if required by TIA Section
313(a).
<PAGE>
61
Section 703. Reports by Company.
-------------------
The Company will:
(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 such Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(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 by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in TIA Section 313(c), 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.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not
permit any Person to consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
<PAGE>
62
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Default, and
no event which, after notice or lapse of time or both, would become a
Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
<PAGE>
63
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to 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 Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, 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 or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of 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
<PAGE>
64
there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (9)
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(9) 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 Sections 401, 1302 and
1303; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to 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 which affect such series of Securities
or of modifying in any manner the rights of the Holders of Securities of such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of such series affected thereby,
(1) change the Stated Maturity of the principal of (or premium, if
any, on), or any installment of principal of or interest on, any Security;
or reduce the principal amount thereof or the rate of interest thereon, or
any premium payable upon the redemption thereof, or change any obligation
of the Company to pay Additional Amounts pursuant to Section 1004 (except
as contemplated by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the
<PAGE>
65
amount thereof provable in bankruptcy pursuant to Section 504, or adversely
affect any right of repayment at the option of the Holder of any Security,
or change any Place of Payment where, or the currency or currencies,
currency unit or units or composite currency or currencies in which, any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be), or adversely affect any right to exchange any
Security as may be provided pursuant to Section 301 herein, or adversely
affect any right to convert any Security as may be provided pursuant to
Section 301 or Article Fifteen, or modify the provisions of this Indenture
with respect to subordination of the Securities of any series in a manner
adverse to the Holders.
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture
which affect such series or certain defaults applicable to such series
hereunder and their consequences provided for in this Indenture, or reduce
the requirements of Section 1404 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series cannot
be modified or waived without the consent of the Holder of each Outstanding
Security of such series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
<PAGE>
66
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities 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 Securities of such series.
Section 907. Subordination Unimpaired.
------------------------
No provision in any supplemental indenture that affects the superior
position of the holders of Senior Indebtedness or Other Senior Obligations shall
be effective against any holder of Senior Indebtedness or Other Senior
Obligations, unless such holder shall have consented thereto.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of such series of Securities and this Indenture. Any
interest due on Bearer Securities on or before Maturity, other than Additional
Amounts, if any, payable as provided in Section 1004 in respect of principal of
(or premium, if any, on) such a Security, shall be payable only upon
presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature. Unless otherwise specified
with respect to Securities of any series pursuant to Section 301, at the option
of the Company,
<PAGE>
67
all payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such
Security. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, 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.
Section 1002. Maintenance of Office or Agency.
-------------------------------
If Securities of a series are issuable only as Registered Securities,
the Company shall maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion, and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. If Securities of a series are issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
The City 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 may be surrendered for registration of transfer or
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the 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 Securities
of that series and related coupons may be presented and surrendered for payment;
provided, however, that if the Securities of that series are listed on the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent for the Securities of that series in Luxembourg or any other
required city located outside the United States, as the case may be, so long as
the 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 or exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable, and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices 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 Security, in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations,
<PAGE>
68
surrenders, notices and demands, and the Company hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, 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 Securities of a series are payable in Dollars, payment of principal of (and
premium, if any) and interest, if any, on any Bearer Security shall be made at
the office of the Company's Paying Agent in the Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for such purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as Places of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office in the Borough of Manhattan, The City of New York as Paying Agent in each
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
Section 1003. Money for 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 any Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in
<PAGE>
69
Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (and
premium, if any) and interest, if any, on Securities of such series so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to each due date of
the principal of (or premium, if any) or interest, if any, on any Securities of
that series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (or premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company 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 sums.
Except, as otherwise provided in the Securities of any series, 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 (or premium, if any) or
interest, if any, on any Security of any series and remaining unclaimed for two
years after such principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal, premium or interest on any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 1004. Additional Amounts.
------------------
If any Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto Additional Amounts as may be specified as
contemplated by Section 301. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of (or premium, if any) or interest,
if any, on any Security of any series
<PAGE>
70
or payment of any related coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided by the terms of such
series established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal, premium
or interest if there has been any change with respect to the matters set forth
in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal, premium or
interest on the Securities of that series shall be made to Holders of Securities
of that series or any related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities of that series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. In the event that the Trustee or any Paying Agent, as the case
may be, shall not so receive the above-mentioned certificate, then the Trustee
or such Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section or in reliance on the Company's not
furnishing such an Officers' Certificate.
Section 1005. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of the conditions
or covenants of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and,
<PAGE>
71
if the Company shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.
Section 1006. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1007. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1008. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1009. Waiver of Certain Covenants.
---------------------------
The Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition which
affects such series set forth in Sections 1007 and 1008, and, as specified
pursuant to Section 301(15) for Securities of any series, in any covenants of
the Company added to Article Ten pursuant to Section 301(14) or Section 301(15),
in connection with Securities of a series if before the time for such compliance
the Holders of at least 66-2/3% in principal amount of all Outstanding
Securities of any series, by Act of such Holders, waive such
<PAGE>
72
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee to Holders of
Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed (unless all of the Securities of such
series and of a specified tenor are to be redeemed), the particular Securities
to be redeemed shall be selected in accordance with the terms of such Securities
but, if not specified, shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
issued on such date with the same terms not previously called for redemption, by
the Trustee in its customary manner which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of
<PAGE>
73
any 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 Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 days nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified by the terms of such series established
pursuant to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(l) the Redemption Date,
(2) the Redemption Price and accrued interest to the Redemption Date
payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any,
<PAGE>
74
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(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 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such
<PAGE>
75
Securities shall if the same were interest-bearing cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest, and provided further
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any 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 borne by the
Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part (pursuant
to the provisions of this Article or of Article Twelve) shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder 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 Security without service
charge, a new Security or Securities of the same series, 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 Security so
surrendered.
<PAGE>
76
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any mandatory sinking fund payment
with respect to the Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms of such series;
provided that such Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the applicable Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for
Securities of any series, 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 hereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be
<PAGE>
77
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance or
------------------------------------------------------------------
Covenant Defeasance.
-------------------
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of or within a series under Section 1302 or (b)
covenant defeasance of the Securities of or within a series under Section 1303,
then the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article (with such modifications thereto as
may be specified pursuant to Section 301 with respect to any Securities), shall
be applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have Section 1302 (if
applicable) or Section 1303 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any coupons appertaining thereto on the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1305 and the other
Sections of this Indenture referred to in clauses (A) and (B) of this Section,
and to have satisfied all its other obligations under such Securities and any
coupons appertaining thereto and this Indenture insofar as such Securities and
any coupons appertaining thereto are concerned (and the Trustee, at the expense
of the Company, shall execute proper
<PAGE>
78
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations with respect
to such Securities under Sections 305, 306, 1002 and 1003 and with respect to
the payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1004, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this Article
Thirteen, the Company may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 1303 with respect to such
Securities and any coupons appertaining thereto.
Section 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Sections 1004 and 1005, and, if specified
pursuant to Section 301, its obligations under any other covenant, with respect
to such Outstanding Securities and any coupons appertaining thereto on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any coupons appertaining thereto
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 1004 and 1005, or such
other covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to such Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or a
Default under Section 503(4) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of Section 1302
or Section 1303 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following
<PAGE>
79
payments, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount (in such currency, currencies or currency unit in
which such Securities and any coupons appertaining thereto are then
specified as payable at Stated Maturity), or (2) Government Obligations
applicable to such Securities and coupons appertaining thereto (determined
on the basis of the currency, currencies or currency unit in which such
Securities and coupons appertaining thereto are then specified as payable
at Stated Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment of principal of
(and premium, if any) and interest, if any, on such Securities and any
coupons appertaining thereto, money in an amount, or (3) a combination
thereof in an amount, 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, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii)
any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit.
(d) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such
<PAGE>
80
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1302 or the covenant defeasance
under Section 1303 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1302 or Section 1303 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
---------------------------------------------------------------
Other Miscellaneous Provisions.
------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1305, the
"Trustee") pursuant to Section 1304 in respect of any Outstanding Securities of
any series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any coupons appertaining thereto 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 Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of 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.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1304(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1304(a) has been made in respect of such
Security, or (b) a Currency Conversion Event occurs as contemplated in Section
312(d) or 312(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 1304(a) has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any) and interest, if any, on such Security as the same becomes
due out of
<PAGE>
81
the proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of
such Security into the currency or currency unit in which such Security becomes
payable as a result of such election or Currency Conversion Event based on the
applicable Market Exchange Rate for such currency or currency unit in effect on
the second Business Day prior to each payment date, except, with respect to a
Currency Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Currency Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1304 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
Section 1306. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1302 or 1303, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1305; provided, however, that if the Company makes any
payment of principal of (or premium, if any, on) or interest on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE FOURTEEN
Meetings of Holders of Securities
Section 1401. Purposes for Which Meetings May Be Called.
-----------------------------------------
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time
<PAGE>
82
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
Section 1402. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in the Borough of Manhattan, The City of New York
or in London as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1401, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
Section 1403. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1404. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in
<PAGE>
83
principal amount of the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes of the time appointed for
any such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of any adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities if that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1404, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
<PAGE>
84
Section 1405. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings.
--------
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 1406. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
<PAGE>
85
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, at least in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the fact, setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
Conversion of Securities
Section 1501. Applicability of Article.
------------------------
Securities of any series which are convertible into Common Stock at
the option of the Holder of such Securities shall be convertible in accordance
with their terms and (unless otherwise specified as contemplated by Section 301
for the Securities of any series) in accordance with this Article. Each
reference in this Article Fifteen to "a Security" or "the Securities" refers to
the Securities of the particular series that is convertible into Common Stock.
If more than one series of Securities with conversion privileges are Outstanding
at any time, the provisions of this Article Fifteen shall be applied separately
to each such series.
Section 1502. Right of Holders to Convert Securities.
--------------------------------------
Subject to and upon compliance with the terms of the Securities and
the provisions of Section 1108 and this Article Fifteen, at the option of the
Holder thereof, any Security of any series of any authorized denomination, or
any portion of the principal amount thereof which is $1,000 or any integral
multiple of $1,000, may, at any time during the period specified in the
Securities of such series, or in case such Security or portion thereof shall
have been called for redemption, then in respect of such Security or portion
thereof until and including, but not after (unless the Company shall default in
payment due upon the redemption thereof) the close of business on the Redemption
Date (except that in the case of redemption at the option of the Holder, if
specified in the terms of the relevant Security, such right shall terminate upon
receipt of written notice of the exercise of such option), be converted into
duly authorized, validly issued, fully paid and nonassessable shares of Common
Stock, as specified in such Security, at the conversion price or conversion rate
for each $1,000 principal amount of Securities (such initial conversion rate
reflecting an initial conversion price specified in such Security) in effect
<PAGE>
86
on the conversion date, or, in case an adjustment in the conversion price has
taken place pursuant to the provisions of Section 1505, then at the applicable
conversion price as so adjusted, upon surrender of the Security or Securities,
the principal amount of which is so to be converted, to the Company at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 1002, accompanied by a written notice
of election to convert as provided in Section 1503 and, if so required by the
Company and/or the Trustee, by a written instrument or instruments of transfer
in form satisfactory to the Company and/or the Trustee, as applicable, duly
executed by the Holder thereof or his attorney duly authorized in writing. All
Securities surrendered for conversion shall, if surrendered to the Company or
any conversion agent, be delivered to the Trustee for cancellation and cancelled
by it, or shall, if surrendered to the Trustee, be cancelled by it, as provided
in Section 310.
The initial conversion price or conversion rate in respect of a series
of Securities shall be as specified in the Securities of such series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 1505 or such other or different terms, if any, as may be
specified by Section 301 for Securities of such series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of it.
Section 1503. Issuance of Shares of Common Stock on Conversions.
-------------------------------------------------
As promptly as practicable after the surrender, as herein provided, of
any Security or Securities for conversion, the Company shall deliver or cause to
be delivered at its said office or agency to or upon the written order of the
Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable shares of Common Stock into which such Security or
Securities may be converted in accordance with the terms thereof and the
provisions of this Article Fifteen. Prior to delivery of such certificate or
certificates, the Company shall require written notice at its said office or
agency from the Holder of the Security or Securities so surrendered stating that
the Holder irrevocably elects to convert such Security or Securities, or, if
less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or names
(with address and social security or other taxpayer identification number) in
which said certificate or certificates are to be issued. Such conversion shall
be deemed to have been made at the time that such Security or Securities shall
have been surrendered for conversion and such notice shall have been received by
the Company or the Trustee, the rights of the Holder of such Security or
Securities as a Holder shall cease at such time, the Person or Persons entitled
to receive the shares of Common Stock upon conversion of such Security or
Securities shall be treated for all purposes as having become either record
holder or holders of such shares of Common Stock at such time and such
conversion shall be at the conversion price in effect at such time. In the case
of any Security of any series which is converted in part only, upon such
conversion, the Company shall execute and, upon the Company's request and at the
Company's expense, the Trustee or an Authenticating Agent shall authenticate and
deliver to the Holder thereof, as requested by such Holder, a new Security or
Securities of such
<PAGE>
87
series of authorized denominations in aggregate principal amount equal to the
unconverted portion of such Security.
If the last day on which a Security may be converted is not a Business
Day in a place where the conversion agent for that Security is located, the
Security may be surrendered to that conversion agent on the next succeeding day
that is a Business Day.
The Company shall not be required to deliver certificates for shares
of Common Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Common Stock shall be delivered as soon
as the stock transfer books shall again be opened.
Section 1504. No Payment or Adjustment for Interest or Dividends.
--------------------------------------------------
Unless otherwise specified as contemplated by Section 301 for
Securities of such series, Securities surrendered for conversion during the
period from the close of business on any Regular Record Date (or Special Record
Date) next preceding any Interest Payment Date to the opening of business on
such Interest Payment Date (except Securities called for redemption on a
Redemption Date within such period) when surrendered for conversion must be
accompanied by payment (by certified or official bank check to the order of the
Company payable in clearing house funds at the location where the Securities are
surrendered) of an amount equal to the interest thereon which the Holder is to
receive on such Interest Payment Date. Payment of interest shall be made, as of
such Interest Payment Date or such other payment date (as set forth in Section
307), as the case may be, to the Holder of the Securities as of such Regular
Record Date or Special Record Date, as applicable. Except where Securities
surrendered for conversion must be accompanied by payment as described above, no
interest on converted Securities will be payable by the Company on any Interest
Payment Date subsequent to the date of conversion. No other payment or
adjustment for interest or dividends is to be made upon conversion.
Notwithstanding the foregoing, upon conversion of any Original Issue Discount
Security, the fixed number of shares of Common Stock into which such Security is
convertible delivered by the Company to the Holder thereof shall be applied,
first, to the portion attributable to the accrued original issue discount
relating to the period from the date of issuance to the date of conversion of
such Security, and second, to the portion attributable to the balance of the
principal amount of such Security.
Section 1505. Adjustment of Conversion Price.
------------------------------
Unless otherwise specified as contemplated by Section 301 for
Securities of such series, the conversion price for Securities shall be adjusted
from time to time as follows:
(a) In case the Company shall pay a dividend or make a distribution
on Common Stock in shares of Common Stock, the conversion price for the
Securities of such series in effect at the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such dividend or
<PAGE>
88
other distribution shall be adjusted by multiplying such conversion price
by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the record date and
the denominator of which shall be the sum of such number of shares of
Common Stock and the total number of shares of Common Stock constituting
such dividend or other distribution and the resulting adjusted conversion
price shall become effective immediately after the opening of business on
the day following the record date, except as provided in subsection (i)
below.
(b) In case the Company shall subdivide the outstanding Common Stock
into a greater number of shares of Common Stock, the conversion price for
the Securities of such series in effect at the opening of business on the
day following the date upon which such subdivision becomes effective shall
be proportionately reduced, and conversely, in case the Company shall
combine the outstanding Common Stock into a smaller number of shares of
Common Stock, the conversion price in effect at the opening of business on
the day following the date upon which such combination becomes effective
shall be proportionately increased, and the resulting reduced or increased
conversion price, as the case may be, shall become effective immediately
after the opening of business on the day following the date upon which such
subdivision or combination becomes effective.
(c) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them (for a period expiring within 45 days after
the record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per
share of Common Stock (as defined for purposes of this subsection (c) in
subsection (f) below), at the record date for the determination of
stockholders entitled to receive such rights or warrants, the conversion
price in effect immediately prior thereto shall be adjusted so that the
same shall equal the price determined by multiplying the conversion price
in effect immediately prior to 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 record date for issuance of such
rights or warrants plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock so
offered would purchase at such current market price, and the denominator of
which shall be the number of shares of Common Stock outstanding on the
record date for issuance of such rights or warrants plus the number of
additional shares of Common Stock receivable upon exercise of such rights
or warrants. Such adjustment shall be made successively whenever any such
rights or warrants are issued, and shall become effective immediately,
except as provided in subsection (i) below, after such record date. In
determining whether any rights or warrants entitle the Holders of the
Securities of such series to subscribe for or purchase shares of Common
Stock at less than such current market price, and in determining the
aggregate offering price of such shares of Common Stock, there shall be
taken into account any consideration received by the Company for such
rights or warrants plus the exercise price thereof, the value of such
consideration or exercise price, as the case may be, if other than cash, to
be determined by the Board of Directors.
<PAGE>
89
(d) In case the Company shall distribute to all holders of Common
Stock any shares of capital stock of the Company (other than Common Stock)
or evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company or dividends
payable in shares of Common Stock) or rights or warrants to subscribe for
or purchase any of its securities (excluding those rights or warrants
referred to in subsection (c) above) (any of the foregoing being herein in
this subsection (d) called the "Distributed Securities"), then, in each
such case, unless the Company elects to reserve such Distributed Securities
for distribution to the Holders of Securities of such series upon the
conversion so that any such Holder converting such Securities will receive
upon such conversion, in addition to the shares of Common Stock to which
such Holder is entitled, the amount and kind of Distributed Securities
which such Holder would have received if such Holder had, immediately prior
to the record date for the distribution of the Distributed Securities,
converted Securities into Common Stock, the conversion price shall be
adjusted so that the same shall equal the price determined by multiplying
the conversion price in effect immediately prior to the date of such
distribution by a fraction the numerator of which shall be the current
market price per share (as defined for purposes of this subsection (d) in
subsection (f) below) of Common Stock on the record date mentioned above
less the then fair market value (as determined by the Board of Directors,
whose determination shall, if made in good faith, be conclusive) of the
portion of the Distributed Securities so distributed allocable to one share
of Common Stock and the denominator of which shall be the then current
market price per share (as defined in subsection (f) below) of Common
Stock; provided, however, that in the event the then fair market value (as
so determined) of the portion of the Distributed Securities so distributed
allocable to one share of Common Stock is equal to or greater than the
current market price per share (as defined in subsection (f) below) of
Common Stock on the record date mentioned above, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of
Securities of such series shall have the right to receive the amount and
kind of Distributed Securities such holder would have received had he
converted such Securities immediately prior to the record date for the
distribution of the Distributed Securities. Such adjustment shall become
effective immediately, except as provided in subsection (i) below, after
the record date for the determination of stockholders entitled to receive
such distribution.
(e) If, pursuant to subsection (c) or (d) above, the conversion price
shall have been adjusted because the Company has declared a dividend, or
made a distribution, on the outstanding shares of Common Stock in the form
of any right or warrant to purchase securities of the Company, or the
Company has issued any such right or warrant, then, upon the expiration of
any such unexercised right or unexercised warrant, the conversion price
shall forthwith be adjusted to equal the conversion price that would have
applied had such right or warrant never been declared, distributed or
issued.
(f) For the purposes of any computation under subsection (c) above,
the current market price per share of Common Stock on any date shall be
deemed to
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90
be the average of the reported last sales prices for the thirty consecutive
Trading Days (as defined below) commencing forty-five Trading Days before
the date in question. For the purpose of any computation under subsection
(d) above, the current market price per share of Common Stock on any date
shall be deemed to be the average of the reported last sales prices for the
ten consecutive Trading Days before the date in question. The reported
last sales price for each day (whether for purposes of subsection (c) or
subsection (d)) shall be the reported last sales price, regular way, or, in
case no sale takes place on such day, the average of the reported closing
bid and asked prices, regular way, in either case as reported on the New
York Stock Exchange Composite Tape or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange at such time, on the
principal national securities exchange on which the Common Stock is listed
or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the National Market of the National
Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or, if the Common Stock is not quoted on such National Market
System, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices
for the Common Stock on each such day shall not have been reported through
NASDAQ, the average of the bid and asked prices for such day as furnished
by any New York Stock Exchange member firm regularly making a market in the
Common Stock selected for such purpose by the Board of Directors or a
committee thereof or, if no such quotations are available, the fair market
value of the Common Stock as determined by a New York Stock Exchange member
firm regularly making a market in the Common Stock selected for such
purpose by the Board of Directors or a committee thereof. As used herein,
the term "Trading Day" with respect to the Common Stock means (x) if the
Common Stock is listed or admitted for trading on the New York Stock
Exchange or another national securities exchange, a day on which the New
York Stock Exchange or such other national securities exchange is open for
business or (y) if the Common Stock is quoted on the National Market of the
NASDAQ, a day on which trades may be made on such National Market or (z)
otherwise, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
(g) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such conversion price; provided, however, that any adjustments which by
reason of this subsection (g) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; and, provided
further that adjustment shall be required and made in accordance with the
provisions of this Article Fifteen (other than this subsection (g)) not
later than such time as may be required in order to preserve the tax free
nature of a distribution to the holders of Common Stock. All calculations
under this Article Fifteen shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be, with one-half cent and 1/200
of a share, respectively, being rounded upward. Anything in this Section
1505 to the contrary notwithstanding, the Company shall be entitled to make
such reductions in the conversion price, in addition to those required by
this Section 1505, as it in its
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91
discretion shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights or warrants to
purchase stock or securities, or distribution of other assets (other than
cash dividends) hereafter made by the Company to its stockholders shall not
be taxable.
(h) Whenever the conversion price is adjusted as herein provided, the
Company shall promptly file with the Trustee, at the Corporate Trust Office
of the Trustee, and with the office or agency maintained by the Company for
the conversion of Securities of such series pursuant to Section 1002, an
Officers' Certificate, setting forth the conversion price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment. Neither the Trustee nor any conversion
agent shall be under any duty or responsibility with respect to any such
certificate or any facts or computations set forth therein, except to
exhibit said certificate from time to time to any Holder of a Security of
such series desiring to inspect the same. The Company shall promptly cause
a notice setting forth the adjusted conversion price to be mailed to the
Holders of Securities of such series, as their names and addresses appear
upon the Security Register of the Company.
(i) In any case in which this Section 1505 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (y) issuing
to the Holder of any Security of such series converted after such record
date and before the occurrence of such event the additional shares of the
Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (z) paying to such
holder any amount in cash in lieu of any fractional share of Common Stock
pursuant to Section 1506 hereof.
(j) Whenever there shall be any change in the conversion price
hereunder, then there shall be an adjustment (to the nearest hundredth of a
share) in the number of shares of Common Stock receivable upon conversion
of each Security, which adjustment shall become effective at the time such
change in the conversion price becomes effective and shall be made by
multiplying the number of shares of Common Stock receivable upon conversion
of such Security immediately before such change in the conversion price by
a fraction the numerator of which is the conversion price immediately
before such change and the denominator of which is the conversion price
immediately after such change. The conversion price per share of Common
Stock shall be adjusted and readjusted from time to time as provided in
this Section 1505 and, as so adjusted or readjusted, shall remain in effect
until a further adjustment or readjustment thereof is required by this
Section 1505.
(k) The form of Security need not be changed because of any
adjustment made pursuant to this Section 1505 and Securities issued after
such adjustment may state the same conversion price and the same number of
shares of Common Stock
<PAGE>
92
as are stated in the Securities initially issued pursuant to this
Indenture. The Company, however, may at any time in its sole discretion
make any change in the form of Securities that it may deem appropriate to
reflect such adjustment and that does not otherwise affect the substance
thereof, and any Securities thereafter issued or countersigned, whether in
exchange or substitution for outstanding Securities or otherwise, may be in
the form as so changed.
(1) Reference is made to the Company's Rights Agreement, dated as
of August 25, 1989, between the Company and Society National Bank, as
successor Rights Agent, as such Rights Agreement may be from time to time
amended, extended or otherwise modified, including any successor
agreement or other similar agreement entered into in replacement thereof
or substitution therefor (the "Rights Agreement"). Notwithstanding anything
to the contrary in this Section 1505, no adjustment in the conversion
price shall be required pursuant to this Section 1505 by virtue of the
issuance of rights to purchase shares of Common Stock of the Company
(each a "Right") pursuant to the Rights Agreement prior to such Rights
becoming exercisable upon a Triggering Event (as such term is from time
to time defined in the Rights Agreement) at a purchase price less than
the current market price per share of Common Stock (as defined for
purposes of Section 1505(c)). Upon the Rights becoming exercisable
following a Triggering Event at a purchase price less than the current
market price per share of Common Stock, the conversion price of a
Security of such series shall be adjusted in accordance with Section
1505(c) above, as if the Rights were issued to all holders of shares of
Common Stock on the date the Triggering Event occurred, provided,
--------
however, that no such adjustment in the conversion price of a Security
-------
of such series shall be made if Rights held by the holder of such Security
of such series would be voided in accordance with the terms of the Rights
Agreement, and, provided further, that any adjustment to the conversion
----------------
price made pursuant to this Section 1505(1) shall be subject to further
adjustment in accordance with Section 1505(e) (including, without
limitation, if any Rights become void pursuant to the provisions of the
Rights Agreement). Nothing in this Section 1505 shall be deemed to
require the Company to maintain the Rights Agreement or restrict the
Company's ability to amend or terminate the Rights Agreement in accordance
with its terms.
Section 1506. No Fractional Shares to Be Issued.
---------------------------------
No fractional shares of Common Stock shall be issued upon
conversions of Securities. If more than one Security of any series shall
be surrendered for conversion at one time by the same holder, the number of
full shares which shall be issuable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities
of such series (or specified portions thereof to the extent permitted
hereby) so surrendered. Instead of a fraction of a share of Common Stock
which would otherwise be issuable upon conversion of any Security or
Securities (or specified portions thereof), the Company shall pay a cash
adjustment (computed to the nearest cent, with one-half cent being rounded
upward) in respect of such fraction of a share in an amount equal to the
same fractional interest of the reported last sales price (as defined in
Section 1505(e)) of the Common Stock on the Trading Day (as defined in
Section 1505(e)) next preceding the day of conversion.
Section 1507. Preservation of Conversion Rights upon Consolidation, Merger, Sale
------------------------------------------------------------------
or Conveyance.
-------------
In case of any consolidation of the Company with, or merger of the
Company into, any other corporation (other than a consolidation or merger in
which the Company is the continuing corporation), or in the case of any sale or
transfer of all or substantially all of the assets of the Company, the
corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture, in accordance with the provisions of
<PAGE>
93
Articles Eight and Nine as they relate to supplemental indentures, providing
that the Holder of each Security then Outstanding of a series which was
convertible into Common Stock shall have the right thereafter to convert such
Security into the kind and amount of shares of stock and other securities and
property, including cash, receivable upon such consolidation, merger, sale or
transfer by a holder of the number of shares of Common Stock of the Company into
which such Securities might have been converted immediately prior to such
consolidation, merger, sale or transfer. Such supplemental indenture shall
conform to the provisions of the Trust Indenture Act as then in effect and shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Fifteen. Neither
the Trustee nor any conversion agent shall have any liability or responsibility
for determining the correctness of any provision contained in any such
supplemental indenture relating either to the kind or amount of shares of stock
or other securities or property receivable by Holders of the Securities upon the
conversion of their Securities after any such consolidation, merger, sale or
transfer, or to any adjustment to be made with respect thereto and, subject to
the provisions of Section 313 of the Trust Indenture Act, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Officers' Certificate with respect thereto and an
Opinion of Counsel with respect to legal matters related thereto. If in the
case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a Holder of the Securities includes stock
or other securities and property of a corporation other than the successor or
purchasing corporation, then such supplemental indenture shall also be executed
by such other corporation and shall contain such additional provisions to
protect the interests of the Holders of the Securities as the Board of Directors
shall reasonably consider necessary. The above provisions of this Section 1507
shall similarly apply to successive consolidations, mergers, sales or transfers.
Section 1508. Notice to Holders of the Securities of a Series Prior to Taking
---------------------------------------------------------------
Certain Types of Action.
-----------------------
With respect to the Securities of any series, in case:
(a) the Company shall authorize the issuance to all holders of Common
Stock of rights or warrants to subscribe for or purchase shares of its
Capital Stock or of any other right;
(b) the Company shall authorize the distribution to all holders of
Common Stock of evidences of indebtedness or assets (except for cash
dividends or distributions paid from retained earnings of the Company);
(c) of any subdivision or combination of Common Stock or of any
consolidation or merger to which the Company is a party and for which
approval by the shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
<PAGE>
94
then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 1002, and shall cause to be mailed to the Holders of
Securities of such series, at their last addresses as they shall appear on the
Security Register of the Company, at least ten days prior to the applicable
record date hereinafter specified, a notice stating (i) the date as of which the
holders of Common Stock to be entitled to receive any such rights, warrants or
distribution are to be determined, or (ii) the date on which any such
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of Common Stock shall be
entitled to exchange their Common Stock for securities or other property, if
any, deliverable upon such subdivision, combination, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action. The
failure to give the notice required by this Section 1508 or any defect therein
shall not affect the legality or validity of any distribution, right, warrant,
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action, or the vote upon any of the foregoing.
Such notice shall also be published by and at the expense of the Company not
later than the aforesaid filing date at least once in an Authorized Newspaper.
Section 1509. Covenant to Reserve Shares for Issuance on Conversion of
--------------------------------------------------------
Securities.
----------
The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Common Stock, free from preemptive
rights, solely for the purpose of issue upon conversion of Securities of any
series as herein provided, such number of shares of Common Stock as shall then
be issuable upon the conversion of all Outstanding Securities of such series.
The Company covenants that all shares of Common Stock which shall be so issuable
shall, when issued or delivered, be duly and validly issued shares of Common
Stock into which Securities of such series are convertible, and shall be fully
paid and nonassessable, free of all liens and charges and not subject to
preemptive rights and that, upon conversion, the appropriate capital stock
accounts of the Company will be duly credited.
Section 1510. Compliance with Governmental Requirements.
-----------------------------------------
The Company covenants that if any shares of Common Stock required to
be reserved for purposes of conversion of Securities hereunder require
registration or listing with or approval of any governmental authority under any
Federal or State law, pursuant to the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, or any national or regional
securities exchange on which Common Stock is listed at the time of delivery of
any shares of Common Stock, before such shares may be issued upon conversion,
the Company will use its best efforts to cause such shares to be duly
registered, listed or approved, as the case may be.
Section 1511. Payment of Taxes upon Certificates for Shares Issued upon
---------------------------------------------------------
Conversion.
----------
The issuance of certificates for shares of Common Stock upon the
conversion of Securities shall be made without charge to the converting Holders
for any
<PAGE>
95
tax (including, without limitation, all documentary and stamp taxes) in respect
of the issuance and delivery of such certificates, and such certificates shall
be issued in the respective names of, or in such names as may be directed by,
the holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall
not be required to issue or deliver such certificate unless or until the Person
or Persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
Section 1512. Trustee's Duties with Respect to Conversion Provisions.
------------------------------------------------------
The Trustee and any conversion agent shall have no duty,
responsibility or liability to any Holder to determine whether any facts exist
which may require any adjustment of the conversion rate, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the registration under securities laws, listing,
validity or value (or the kind or amount) of any shares of Common Stock, or of
any other securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Neither the Trustee nor
any conversion agent shall be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee and any conversion agent, subject
to the provisions of Section 313 of the Trust Indenture Act, shall not be
responsible for any failure of the Company to comply with any of the covenants
of the Company contained in this Article Fifteen.
ARTICLE SIXTEEN
Subordination of Securities
Section 1601. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that the payment of the
principal of (and premium, if any, and Additional Amounts, if any) and interest,
if any, on each and all of the Securities is hereby expressly subordinated, to
the extent and in the manner hereinafter set forth in this Article, to the prior
payment in full of all Senior Indebtedness.
Section 1602. Payment Over of Proceeds upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection
<PAGE>
96
therewith, relative to the Company or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event
the holders of all Senior Indebtedness shall be entitled to receive payment in
full of all amounts due on or in respect of all Senior Indebtedness, or
provision shall be made for such payment in money or money's worth, before the
Holders of the Securities are entitled to receive any payment on account of
principal of (or premium, if any, or Additional Amounts, if any) or interest,
if any, on the Securities, and to that end the holders of Senior Indebtedness
shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property or
securities, which may be payable or deliverable in respect of the Securities in
any such case, proceeding, dissolution, liquidation or other winding up or
event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or Holder of any Security shall have received any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities before all Senior Indebtedness is paid in full or
payment thereof provided for, and if such fact shall, at or prior to the time of
such payment or distribution, have been made known to a Responsible Officer of
the Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person upon
the terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshalling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
<PAGE>
97
Section 1603. No Payment When Senior Indebtedness in Default.
----------------------------------------------
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders thereof) to declare such
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment, or event of default, then no payment shall be made by the Company on
account of principal of (or premium, if any) or interest, if any, or Additional
Amounts, if any, on the Securities or on account of the purchase or other
acquisition of Securities; provided, however, that if as specified as
contemplated by Section 301 Article Twelve is applicable to any series of
Securities, nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Twelve by delivering and
crediting pursuant to Section 1202 Securities of such series which have been
acquired (upon redemption or otherwise) prior to such default in payment or
event of default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1602 would be applicable.
Section 1604. Payment Permitted if No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1602 or under the conditions
described in Section 1603, from making payments at any time of principal of (and
premium, if any, or Additional Amounts, if any) or interest on the Securities,
or (b) the application by the Trustee of any moneys deposited with it hereunder
to the payment of or on account of the principal of (or premium, if any, or
Additional Amounts, if any) or interest on the Securities or the retention by
the Holder, if, at the time of such application by the Trustee, a Responsible
Officer did not have knowledge that such payment would have been prohibited by
the provisions of this Article.
<PAGE>
98
Section 1605. Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated (equally and ratably with the holders of
all Existing Subordinated Indebtedness and all indebtedness of the Company which
by its express terms is subordinated to indebtedness of the Company to
substantially the same extent as the Securities or the Existing Subordinated
Indebtedness are subordinated and is entitled to like rights of subrogation) to
the extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
Section 1606. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness (and, in the case of Section
1614, the holders of Existing Subordinated Indebtedness and Entitled Persons in
respect of Other Senior Obligations) on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of (and premium, if any, or Additional Amounts, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms; (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness and of Existing Subordinated Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness, and under Section 1614 of Entitled Persons in respect of
Other Senior Obligations, to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
Section 1607. Trustee to Effectuate Subordination and Payment Provisions.
----------------------------------------------------------
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination and payment provisions provided in
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
<PAGE>
99
Section 1608. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any failure to act on the part of the Company or by
any failure to act, in good faith, by any such holder, or by any non-compliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibilities to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 1609. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor or from
any Entitled Persons in respect of Other Senior Obligations, and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal (and premium, if
any, or Additional Amounts, if any) or interest on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) or an Entitled Person in respect of Other Senior
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100
Obligations to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor) or an Entitled Person in respect of Other
Senior Obligations. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness or an Entitled Person in respect of Other Senior
Obligations to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
or Other Senior Obligations held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment or distribution to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Section 1610. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company and the Entitled Persons in respect of Other
Senior Obligations, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
Section 1611. Trustee Not Fiduciary for Holders of Senior Indebtedness or
-----------------------------------------------------------
Entitled Persons.
----------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness or Entitled Persons in respect of Other Senior
Obligations and shall not be liable to any such holders or creditors if it shall
in good faith pay over or distribute to Holders of Securities or to the Company
or to any other Person cash, property or securities to which any holders of
Senior Indebtedness or Entitled Persons in respect of Other Senior Obligations
shall be entitled by virtue of this Article or otherwise.
Section 1612. Rights of Trustee as Holder of Senior Indebtedness or Entitled
--------------------------------------------------------------
Person; Preservation of Trustee's Rights.
----------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it and with respect to any Other Senior Obligations
owed to the Trustee as an Entitled Person, to the same extent as any other
holder of Senior Indebtedness or Entitled Person in respect of Other Senior
Obligations, as the case may be, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder or Entitled Person.
<PAGE>
101
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 606.
Section 1613. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1612 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1614. Relationship to Existing Subordinated Indebtedness; Payment of
--------------------------------------------------------------
Excess Proceeds in Certain Cases.
- --------------------------------
(a) The Securities shall not be superior in right of payment to any
of the Existing Subordinated Indebtedness and the obligations of the Company
evidenced by the Securities shall not constitute "senior indebtedness" as
defined in the Society Subordinated Indenture or in the Old KeyCorp Subordinated
Indentures, or in any other indenture or other instrument or document
establishing or governing the terms of any other Existing Subordinated
Indebtedness.
(b) Upon the occurrence of any of the events specified in clauses
(a), (b) and (c) of the first paragraph of Section 1602, the provisions of that
Section and the corresponding provisions of each indenture or other instrument
or document establishing or governing the terms of any Existing Subordinated
Indebtedness shall be given effect in accordance with their respective terms to
determine the amount of cash, property or securities which may be payable or
deliverable as among the holders of Senior Indebtedness and the holders of
"senior indebtedness", as defined in such indentures, instruments and documents,
on the one hand, and the Holders of Securities and holders of Existing
Subordinated Indebtedness, on the other hand. To the extent that the Securities
and any Existing Subordinated Indebtedness rank equally and pari passu, the
provisions of Section 1602 and the corresponding provisions of the indenture or
other instrument or document establishing or governing the terms of such
Existing Subordinated Indebtedness shall be given effect on a pro rata basis to
determine the amount of cash, property or securities which may be payable or
deliverable as between the holders of Senior Indebtedness and the holders of
"senior indebtedness", as defined in such indentures, instruments and documents,
on the one hand, and the Holders of Securities and holders of such Existing
Subordinated Indebtedness, on the other hand.
(c) If, after giving effect, to the extent applicable, to the
provisions of Section 1602, Section 1605, Section 1614(b) and the respective
corresponding provisions of each indenture or other instrument or document
establishing or governing the terms of any Existing Subordinated Indebtedness,
any amount of cash, property or securities shall be available for payment or
distribution in respect of the Securities ("Excess Proceeds"), and any Entitled
Persons in respect of Other Senior Obligations shall not have received
<PAGE>
102
payment in full of all amounts due on or in respect of such Other Senior
Obligations (and provision shall not have been made for such payment in money or
money's worth), then such Excess Proceeds shall first be applied (ratably with
any amount of cash, property or securities available for payment or distribution
in respect of any other indebtedness of the Company that by its express terms
provides for the payment over of amounts corresponding to Excess Proceeds to
Entitled Persons in respect of Other Senior Obligations) to pay or provide for
the payment of the Other Senior Obligations remaining unpaid, to the extent
necessary to pay all Other Senior Obligations in full, after giving effect to
any concurrent payment or distribution to or for Entitled Persons in respect of
Other Senior Obligations. Any Excess Proceeds remaining after the payment (or
provision for payment) in full of all Other Senior Obligations shall be
available for payment or distribution in respect of the Securities.
(d) In the event that, notwithstanding the foregoing provisions of
subsection (c) of this Section, the Trustee or Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all Other Senior
Obligations are paid in full or payment thereof duly provided for, and if such
fact shall, at or prior to the time of such payment or distribution have been
made known to a Responsible Officer of the Trustee or, as the case may be, such
Holder, then and in such event, subject to any obligation that the Trustee or
such Holder may have pursuant to Section 1602, such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for payment in accordance with
subsection (c).
(e) Subject to the payment in full of all Other Senior Obligations,
the Holders of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company that by its express terms provides
for the payment over of amounts corresponding to Excess Proceeds to Entitled
Persons in respect of Other Senior Obligations and is entitled to like rights of
subrogation) to the extent of the payments or distributions made to Entitled
Persons in respect of Other Senior Obligations pursuant to subsection (c) or (d)
of this Section to the rights of the Entitled Persons in respect of Other Senior
Obligations to receive payments and distributions of cash, property and
securities applicable to the Other Senior Obligations until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to Entitled Persons
in respect of Other Senior Obligations of any cash, property or securities to
which Holders of the Securities or the Trustee would be entitled except for the
provisions of this Section, and no payments over pursuant to the provisions of
this Section to Entitled Persons in respect of Other Senior Obligations by
Holders of Securities or the Trustee, shall, as among the Company, its creditors
other than Entitled Persons in respect of Other Senior Obligations and the
Holders of Securities be deemed to be a payment or distribution by the Company
to or on account of the Other Senior Obligations.
(f) The provisions of subsections (c), (d) and (e) of this Section
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities, on the one hand, and the Entitled Persons in
respect of Other Senior
<PAGE>
103
Obligations, on the other hand, after giving effect to the rights of the holders
of Senior Indebtedness, as provided in this Article. Nothing contained in
subsections (c), (d) and (e) of this Section is intended to or shall affect the
relative rights against the Company of the Holders of the Securities and (1) the
holders of Senior Indebtedness, (2) the holders of Existing Subordinated
Indebtedness or (3) other creditors of the Company other than Entitled Persons
in respect of Other Senior Obligations.
ARTICLE SEVENTEEN
Repayment at the Option of Holders
Section 1701. Applicability of Article.
------------------------
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article.
Section 1702. Repayment of Securities.
-----------------------
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on
or before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
Section 1703. Exercise of Option.
------------------
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
<PAGE>
104
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
Section 1704. When Securities Presented for Repayment Become Due and Payable.
--------------------------------------------------------------
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons, and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1702 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
<PAGE>
105
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
Section 1705. Securities Repaid in Part.
--------------------------
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
----------------------
<PAGE>
106
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
KEYCORP
By
------------------------------
Attest:
- ------------------------------
BANKERS TRUST COMPANY
By
------------------------------
Attest:
- ------------------------------
<PAGE>
STATE OF OHIO )
) ss.:
COUNTY OF CUYAHOGA )
On the ____ day of _________________________, 1994, before me
personally came _________________________, to me known, who, being by me duly
sworn, did depose and say that he is _____________________ of KeyCorp, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
----------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _________________________, 1994, before me
personally came __________________________, to me known, who, being by me duly
sworn, did depose and say that he is a Trust Officer of Bankers Trust Company,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
----------------------------
<PAGE>
STATE OF OHIO )
) ss.:
COUNTY OF CUYAHOGA )
On the ____ day of _________________________, 1994, before me
personally came _________________________, to me known, who, being by me duly
sworn, did depose and say that he is _____________________ of KeyCorp, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
----------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _________________________, 1994, before me
personally came ________________________, to me known, who, being by me duly
sworn, did depose and say that he is a Trust Officer of Bankers Trust Company,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
----------------------------
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States persons(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 2.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise [Name of Issuer] or its agent that such financial institution 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 regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the
owner is a United States or foreign financial institution described in clause
(iii) above (whether or not also described in clause (i) or (ii)), this is to
further certify that such financial institution has not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
<PAGE>
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 above-
captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]____________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in 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.
Dated:
[To be dated no earlier than the
15th day prior to (i) the Exchange
Date or (ii) the relevant Interest
Payment Date occurring prior to
the Exchange Date, as applicable]
[Name of Person Making
Certification]
-------------------------------------------
(Authorized Signatory)
--------------------
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]__________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise [Name of Issuer] or its
agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of
<PAGE>
Member Organizations and (ii) 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, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in 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.
Dated:
[To be dated no earlier than
the Exchange Date or the
relevant Interest Payment Date
occurring prior to the Exchange
Date, as applicable]
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear
System]
[CEDEL]
By
-------------------------------------------
A-2-2
<PAGE>
Exhibit (4)(e)
THIS SECURITY IS AN OBLIGATION OF THE COMPANY AND IS NOT AND WILL NOT BE A
SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY
OF THE COMPANY, AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION,
BANK INSURANCE FUND, SAVINGS ASSOCIATION INSURANCE FUND, OR ANY OTHER GOVERNMENT
AGENCY OR INSTRUMENTALITY.
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder]
[Form of Fixed Rate Redeemable or
Non-Redeemable Senior Security]
KEYCORP
___% ____ due _____
No. _________ $____________
KEYCORP, a corporation duly organized and existing under the laws of
the State of Ohio (herein referred to as the "Company", which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to
______________________________________ or registered assigns the principal sum
of ________________ Dollars on ___________ [If the Security is to bear interest
-----------------------------------
prior to maturity, insert -- , and to pay interest thereon from _____________ or
- -------------------------
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on __________ and __________ in each year,
commencing _____________, at the rate of ___% per annum, until the principal
hereof is paid or duly provided for. [If applicable, insert -- , and (to the
---------------------
extent that the payment of such interest shall be legally enforceable) at the
rate of ___% per annum on any overdue principal and premium and on any overdue
installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the _____ or _____(whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holder on such
<PAGE>
2
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee referred to on the reverse hereof, notice whereof shall
be given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
-----------------------------------------------------------------
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ___% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [If applicable,
--------------
insert --any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts [If applicable, insert -- ; provided, however, that at the option of the
------------- ------ -------- -------
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by transfer to an account maintained by the payee located inside the United
States].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place. This Security is one of a
series of Securities designated ____% Notes due _____.
<PAGE>
3
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated: ________________________
KEYCORP
By_________________________________
Attest:
- ------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY
as Trustee
By_____________________________________
Authorized Signatory
<PAGE>
[Reverse of Certificate]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture dated as of May __, 1994 (herein called the
"Indenture") between the Company and Bankers Trust Company, Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture with respect to the series of which this Security is a part), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $___________.
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
[If applicable, insert -- The Securities of this series may not be
---------------------
redeemed prior to the date of Maturity.]
[If applicable insert -- The Securities of this series are subject to
--------------------
redemption [(1)] [If applicable, insert -- on __________ in any year commencing
---------------------
with the year ____ and ending with the year ____ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, [and] (2)] [If applicable, insert --at any time [on or after
---------------------
__________], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed on or before __________, __%, and if redeemed during the 12-month
period beginning __________ of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
---------------------
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
-------- -------
Security whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
<PAGE>
2
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption (1) on ___________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ________________], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning __________ of the years indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose Stated
- -------- -------
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________, redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption on
__________ in each year, beginning with the year ____ and ending with the year
____, of [not less than $ __________ [("mandatory sinking fund")] and not more
than $ __________] aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made in the [describe
--------
order] order in which they become due.]
- -----
[If the Security is subject to redemption, insert -- Notice of
------------------------------------------------
redemption will be given by mail to Holders of Securities, not less than __ nor
more than __ days prior to the date fixed for redemption, all as provided in the
Indenture.
<PAGE>
3
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert --
------------------------------------------------------------------
If an Event of Default with respect to the Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
--------------------------------------------------------------
an Event of Default with respect to the Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of the series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than 66 2/3% in principal amount of the Outstanding Securities of each
series issued under the Indenture and affected by the modification or amendment.
The Indenture also contains provisions permitting the Holders of not less than
66 2/3% in principal amount of the Outstanding Securities of any series, on
behalf of the Holders of all the Outstanding Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture. Furthermore,
provisions in the Indenture permit the Holders of not less than 66 2/3% in
principal amount of the Outstanding Securities of any series to waive on behalf
of the Holders of all Securities of such series certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security of this series 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 Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of any series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default, the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series shall have made written
request and offered indemnity or security reasonably satisfactory to the Trustee
to institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of such series a direction
<PAGE>
4
inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
-------- -------
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of (and premium, if any) or any interest on this Security on or after
the respective due date expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, places and rate, and in the coin or
currency, herein prescribed.
[If applicable, insert -- The Indenture contains provisions that apply
---------------------
to the Securities of this series for defeasance at any time of (a) the entire
indebtedness of the Company on the Securities of this series and (b) certain
restrictive covenants and the related defaults and Events of Default with
respect to the Securities of this series, upon compliance by the Company with
certain conditions set forth therein.]
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of different authorized denominations, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE>
Exhibit (4)(f)
THIS SECURITY IS AN OBLIGATION OF THE COMPANY AND IS NOT AND WILL NOT BE A
SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY
OF THE COMPANY, AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION,
BANK INSURANCE FUND, SAVINGS ASSOCIATION INSURANCE FUND, OR ANY OTHER GOVERNMENT
AGENCY OR INSTRUMENTALITY.
[Insert any legend required by the Internal Revenue Code
and the regulations thereunder]
[Form of Fixed Rate Redeemable or Non-Redeemable
Subordinated Security]
KEYCORP
___% Subordinated _____ due _____
No. __________ $__________
KEYCORP, a Corporation duly organized and existing under the laws of the
State of Ohio (herein referred to as the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ____________________________________ or
registered assigns the principal sum of ________________ Dollars on
_____________ [if the Security is to bear interest prior to Maturity, insert --,
-------------------------------------------------------------
and to pay interest thereon from _____________ or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on _____________ and ____________ in each year, commencing _____________, at the
rate of ___% per annum, until the principal hereof is paid or duly provided for
[if applicable, insert --, and (to the extent that the payment of such
---------------------
interest shall be legally enforceable) at the rate of ___% per annum on any
overdue principal or premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the _____ or _____ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such
<PAGE>
2
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in such Indenture.]
[If the Security is not to bear interest prior to Maturity, insert -- The
-----------------------------------------------------------------
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ___% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
-----------
insert -- any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts [if applicable, insert -- ; provided, however, that at the option of the
--------------------- -------- -------
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by transfer to an account maintained by the payee located inside the United
States].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place. This Security is one of a
series designated ____% Subordinated Notes due _____.
<PAGE>
3
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated: __________
KEYCORP
By_________________________
Attest:
_________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
as Trustee
By_________________________________
Authorized Signatory
<PAGE>
[Reverse of Certificate]
This Security is one of a duly authorized issue of subordinated
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture dated as of May __, 1994 (herein
called the "Indenture") between the Company and Bankers Trust Company, Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture with respect to the series of which this Security is a part), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior
Indebtedness, the holders of Other Senior Obligations and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $__________.
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
[If applicable, insert -- The Securities of this series may not be
---------------------
redeemed prior to Maturity.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption [(1)] [If applicable,insert -- on __________ in any year commencing
--------------------
with the year ____ and ending with the year ____ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, [and] (2)] [If applicable, insert -- at any time [on or after
---------------------
__________], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed on or before __________, __%, and if redeemed during the 12-month
period beginning __________ of the years indicated,
Year Redemption Price Year Redemption Price
- ---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
---------------------
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
-------- -------
Security whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
----------------------
redemption (1) on ___________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at the Redemption Prices for redemption
<PAGE>
2
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any time [on or after
________________], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning __________ of the years
indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------------- --------------------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
[provided, however, that installments of interest on this Security whose Stated
- --------- -------
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________, redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption on
__________ in each year, beginning with the year ____ and ending with the year
____, of [not less than $ __________ [("mandatory sinking fund")] and not more
than $ __________] aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made in the [describe
--------
order] order in which they become due.]
- -----
[If the Security is subject to redemption, insert -- Notice of
------------------------------------------------
redemption will be given by mail to Holders of Securities, not less than _____
nor more than ______ days prior to the date fixed for redemption, all as
provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.]
<PAGE>
3
[If applicable, insert -- Subject to and upon compliance with the
---------------------
provisions of the Indenture and any indenture supplemental thereto, Board
Resolution or Officers' Certificate related hereto, the Holder hereof has the
right, at his option, to convert this Security into Common Shares of the Company
at any time before the close of business on ______________. [If this Security
is called for redemption, the Holder may convert it at any time before the close
of business on the Redemption Date by delivering the Security for conversion in
accordance with the redemption notice.] The initial conversion price is
$__________ per share, subject to adjustment in certain events as more fully
described in the Indenture, Board Resolution or Officers' Certificate relating
hereto.
To convert this Security, a Holder must (1) complete and sign the
Conversion Notice as provided herein on the back of the Security, (2) surrender
the Security to the Company at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, (3) furnish
appropriate endorsements and transfer documents if required by the Company
and/or the Trustee, and (4) pay any transfer or similar tax if required.
As more fully described in the Indenture, Board Resolution or
Officers' Certificate relating hereto, if the Company is a party to a
consolidation or merger or a transfer of all or substantially all of its assets,
the right to convert this Security into Common Shares of the Company may be
changed into a right to convert it into securities, cash or other assets of the
Company or another person.]
The indebtedness evidenced by the Securities is, to the extent and in
the manner set forth in the Indenture, expressly subordinated and subject in
right of payment to the prior payment in full of all Senior Indebtedness and,
upon certain events of insolvency, to the prior payment of all Other Senior
Obligations, and this Security is issued subject to such provisions of the
Indenture. Each Holder of this Security, by accepting the same, agrees to and
shall be bound by such provisions of the Indenture and authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate such subordination as provided in the Indenture and appoints the
Trustee his attorney-in-fact for any and all such purposes.
[If the Security is not an Original Issue Discount Security, insert --
------------------------------------------------------------------
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
--------------------------------------------------------------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal and overdue interest (in each case
to the
<PAGE>
4
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of the series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than 66 2/3% in principal amount of the Outstanding Securities of each
series issued under the Indenture and affected by the modification or amendment.
The Indenture also contains provisions permitting the Holders of not less than
66 2/3% in principal amount of the Outstanding Securities of any series, on
behalf of the Holders of all the Outstanding Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture. Furthermore, provisions in the Indenture
permit the Holders of not less than 66 2/3% in principal amount of the
Outstanding Securities of any series to waive on behalf of the Holders of all
Securities of such series certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security of this series 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 Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of any series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Default, the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request and
offered indemnity or security reasonably satisfactory to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of such series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days; provided, however, that such
-------- -------
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of (and premium, if any) or any interest
on this Security on or after the respective due date expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, places and rate, and in the coin or
currency, herein prescribed.
[If applicable, insert -- The Indenture contains provisions that apply
---------------------
to the Securities of this series for defeasance at any time of (a) the entire
indebtedness of the Company on the Securities of this series and (b) certain
restrictive covenants and the related
<PAGE>
5
defaults with respect to the Securities of this series, upon compliance by the
Company with certain conditions set forth therein.]
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of different authorized denominations, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE>
If applicable, insert the following:
- -----------------------------------
CONVERSION NOTICE
To KeyCorp
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security, or portion hereof below designated, into
Common Shares of KeyCorp in accordance with the terms of the Indenture referred
to in this Security, and in accordance with the Applicable Supplemental
Indenture, Board Resolution or Officers' Certificate, as the case may be, and
directs that the shares issuable and deliverable upon the conversion, together
with any check in payment for fractional shares and any Securities representing
any unconverted principal amount hereof, be issued and delivered to the Holder
hereof unless a name of a person has been indicated below. If shares are to be
issued in the name of a person other than the undersigned, the undersigned
Holder will pay all transfer taxes payable with respect thereto. Any amount
required to be paid by the undersigned on account of interest accompanies this
Security.
Date: -------------------------------------- ---------------------------------
Signature
Fill in for registration of shares: Principal Amount to be converted
- -------------------------------------- (in an integral multiple of
- -------------------------------------- $1,000, if less than all):
- --------------------------------------
- -------------------------------------- $__________
- -------------------------------------- ---------------------------------
Please print name Social Security or other Taxpayer
Taxpayer Identification Number
- --------------------------------------
Please print address (including zip
code)
<PAGE>
Exhibit (4)(g)
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
- --------------------------------------------------------------------------------
KEYCORP
and
----------------------------------------------------------
Warrant Agent
----------------------------------
WARRANT AGREEMENT
Dated as of ________________________, 199__
----------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS*
Page
----
PARTIES.........................................................1
RECITALS........................................................1
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
1.01. Issuance of Warrants.............................. 2
1.02. Form and Execution of Warrant Certificates........ 2
1.03. Issuance and Delivery of Warrant Certificates..... 3
1.04. Temporary Warrant Certificates.................... 4
1.05. Payment of Taxes.................................. 4
1.06. Definition of Holder.............................. 4
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
2.01. Duration of Warrants.............................. 5
2.02. Exercise of Warrants.............................. 5
2.03. Common Share Warrant Adjustments.................. 6
2.04. Reservation of Shares............................. 11
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANTS
3.01. No Rights as Holder of Underlying Security
Conferred by Warrants or Warrant Certificates..... 12
3.02. Lost, Stolen, Destroyed or Mutilated Warrant
Certificates...................................... 12
3.03. Holder of Warrants May Enforce Rights............. 12
- ----------
* The Table of Contents is not part of the Warrant Agreement.
i
<PAGE>
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANTS
4.01. [Warrant Register;] Exchange and Transfer of
Warrants ......................................... 13
4.02. Treatment of Holders of Warrants.................. 14
4.03. Cancellation of Warrant Certificates.............. 14
ARTICLE V
CONCERNING THE WARRANT AGENT
5.01. Warrant Agent..................................... 14
5.02. Conditions of Warrant Agent's Obligations......... 15
5.03. Resignation and Removal; Appointment of Successor. 17
5.04. Office............................................ 18
ARTICLE VI
MISCELLANEOUS
6.01. Reclassification, Consolidation, Merger, Sale or
Conveyance ....................................... 19
6.02. Supplements and Amendments........................ 20
6.03. Notices and Demands to the Company and Warrant
Agent ............................................ 21
6.04. Addresses......................................... 21
6.05. Applicable Law.................................... 21
6.06. Delivery of Prospectus............................ 21
6.07. Obtaining Governmental Approvals.................. 22
6.08. Persons Having Rights Under Warrant Agreement..... 22
6.09. Headings.......................................... 22
6.10. Counterparts...................................... 22
6.11. Inspection of Agreement........................... 22
6.12. Acceleration of Warrants by the Corporation....... 22
TESTIMONIUM................................................... 24
SIGNATURES.................................................... 24
EXHIBIT A FORM OF REGISTERED WARRANT CERTIFICATE
EXHIBIT B FORM OF WARRANT EXERCISE NOTICE
EXHIBIT C COMPENSATION OF WARRANT AGENT
ii
<PAGE>
THIS WARRANT AGREEMENT, dated as of __________, 199__ between KEYCORP,
an Ohio corporation (the "Company"), and ____________, a [bank or trust company]
-------
organized and existing under the laws of ________, as warrant agent (the
"Warrant Agent").
- -------- -----
WHEREAS, the Company has entered into an Indenture dated as of
__________, 1994 (the "Senior Indenture") with Bankers Trust Company, as trustee
------ ---------
(the "Senior Indenture Trustee"), providing for the issuance by the Company from
------ --------- -------
time to time, in one or more series, of debt securities evidencing its
unsecured, senior indebtedness (the "Senior Debt Securities"); and
------ ---- ----------
WHEREAS, the Company has entered into an Indenture dated as of
__________, 1994 (the "Subordinated Indenture") with Bankers Trust Company, as
------------ ---------
trustee (the "Subordinated Indenture Trustee"), providing for the issuance by
------------ --------- -------
the Company from time to time, in one or more series, of debt securities
evidencing its unsecured, subordinated indebtedness (the "Subordinated Debt
------------ ----
Securities"); and
- ----------
WHEREAS, the Company has provided for the offering, from time to time,
of its Common Shares, with a par value of $1 each ("Common Shares"), shares of
------ ------
its ______ Preferred Stock, Class __, with a par value of $1 each ("Preferred
---------
Stock"), and depositary shares representing fractional interests in shares of
- -----
its Preferred Stock ("Depositary Shares", and, together with the Senior Debt
---------- ------
Securities, the Subordinated Debt Securities, the Common Shares and the
Preferred Stock, the "Securities"); and
----------
WHEREAS, the Company proposes to issue from time to time warrants (the
"Warrants") representing the right to purchase Senior Debt Securities,
--------
Subordinated Debt Securities, Common Shares, Preferred Stock and Depositary
Shares, in any combination thereof (the underlying securities purchaseable
through exercise of Warrants, the "Underlying Securities"); and
---------- ----------
WHEREAS, the Company has duly authorized the execution and delivery of
this Warrant Agreement to provide for the issuance of Warrants to be exercisable
at such times and for such prices, and to have such other provisions, as shall
be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
<PAGE>
2
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
1.01. Issuance of Warrants. Warrants may be issued from time to
--------------------
time, together with or separately from the Securities (the "Offered
-------
Securities"). Prior to the issuance of any Warrants, there shall be established
- ----------
by or pursuant to a resolution or resolutions duly adopted by the Company's
Board of Directors or by any committee thereof duly authorized to act with
respect thereto (a "Board Resolution"):
----- ----------
(a) the title and aggregate number of such Warrants;
(b) whether such Warrants are to be issued with any Offered
Securities and, if so, the title, aggregate principal amount or number of
shares, ranking and terms of any such Offered Securities; the number of
Warrants to be issued with each $1,000 principal amount or 100 shares of
such Offered Securities (or such other principal amount and currency or
number of shares of such Offered Securities as is provided for in the Board
Resolution); and the date, if any, on and after which such Warrants and
such Offered Securities will be separately transferable (the "Detachable
----------
Date"); if the Warrants are offered for separate consideration, the
----
offering price and the currency for which the Warrants may be purchased;
(c) the title, aggregate principal amount or number of shares,
ranking and terms of the Underlying Securities that may be purchased upon
exercise of such Warrants;
(d) the time or times at which, or period or periods during which,
such Warrants may be exercised and the final date on which such Warrants
may be exercised (the "Expiration Date");
---------- ----
(e) the principal amount or number of shares of Underlying Securities
that may be purchased upon exercise of each Warrant, [and] the price, or
the manner of determining the price (the "Warrant Price"), at which such
------- -----
principal amount or number of shares may be purchased upon such exercise,
and the currency and manner of payment;
(f) the terms of any right to redeem such Warrants; and
(g) any other terms of such Warrants not inconsistent with the
provisions of this Agreement.
1.02. Form and Execution of Warrant Certificates. (a) The Warrants
------------------------------------------
shall be evidenced by warrant certificates (the "Warrant Certificates"), which
------- ------------
may be in registered
<PAGE>
3
or bearer form and otherwise shall be substantially in such form or forms as set
forth in Exhibit A hereto or as shall be established by or pursuant to a Board
Resolution. Each Warrant Certificate whenever issued, shall be dated the date
it is countersigned by the Warrant Agent and may have such letters, numbers or
other identifying marks and such legends or endorsements printed, lithographed
or engraved thereon as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law, rule or
regulation or with any rule or regulation of any securities exchange on which
the Warrants may be listed, or to conform to usage, as the officer of the
Company executing the same may approve (such officer's execution thereof to be
conclusive evidence of such approval). Each Warrant Certificate shall evidence
one or more Warrants.
(b) The Warrant Certificates shall be signed in the name and on
behalf of the Company by its Chairman of the Board, a Vice-Chairman, its
President or a Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the Company whether or
not designated by a number or a word or words added before or after the title
"Vice President") under its corporate seal, and attested by its Secretary or an
Assistant Secretary. Such signatures may be manual or facsimile signatures of
the present or any future holder of any such office and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Warrant Certificates.
(c) No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be deemed issued or exercisable, until such
Warrant Certificate has been countersigned by the manual or facsimile signature
of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence that the
Warrant Certificate so countersigned has been duly issued hereunder.
(d) In case any officer of the Company who shall have signed any
Warrant Certificate either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificate so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificate
nevertheless may be countersigned and delivered as though the person who signed
such Warrant Certificate had not ceased to be such officer of the Company; and
any Warrant Certificate may be signed on behalf of the Company by such person
as, at the actual date of the execution of such Warrant Certificate, shall be
the proper officer of the Company, although at the date of the execution of this
Agreement such person was not such an officer.
1.03. Issuance and Delivery of Warrant Certificates. At any time and
---------------------------------------------
from time to time after the execution and delivery of this Agreement, the
Company may deliver Warrant Certificates executed by the Company to the Warrant
Agent for countersignature. Except as provided in the following sentence, the
Warrant Agent shall thereupon countersign and deliver such Warrant Certificates
to or upon the written request of the Company.
<PAGE>
4
Subsequent to the original issuance of a Warrant Certificate evidencing
Warrants, the Warrant Agent shall countersign a new Warrant Certificate
evidencing such Warrants only if such Warrant Certificate is issued in exchange
or substitution for one or more previously countersigned Warrant Certificates
evidencing such Warrants or in connection with their transfer, as hereinafter
provided.
1.04. Temporary Warrant Certificates. Pending the preparation of
------------------------------
definitive Warrant Certificates, the Company may execute, and upon the order of
the Company the Warrant Agent shall countersign and deliver, temporary Warrant
Certificates that are printed, lithographed, typewritten, mimeographed or
otherwise produced, substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officer
executing such Warrant Certificates may determine, as evidenced by such
officer's execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or at ________________], without charge to the Holder, as
defined in Section 1.06 hereof. Upon surrender for cancellation of any one or
more temporary Warrant Certificates, the Company shall execute and the Warrant
Agent shall countersign and deliver in exchange therefor definitive Warrant
Certificates representing the same aggregate number of Warrants. Until so
exchanged, the temporary Warrant Certificates shall in all respects be entitled
to the same benefits under this Agreement as definitive Warrant Certificates.
1.05. Payment of Taxes. The Company will pay all stamp and other
----------------
duties, if any, to which this Agreement or the original issuance of the Warrants
or Warrant Certificates may be subject under the laws of the United States of
America or any state or locality.
1.06. Definition of Holder. The term "Holder" or "Holders", as used
-------------------- ------ -------
herein with reference to a Warrant Certificate, shall mean [if registered
-------------
Warrants -- the person or persons in whose name such Warrant Certificate shall
- --------
then be registered as set forth in the Warrant Register to be maintained by the
Warrant Agent pursuant to Section 4.01 for that purpose] [if bearer Warrants --
------------------
the bearer of such Warrant Certificate] or, in the case of Warrants that are
issued with Offered Securities and cannot then be transferred separately
therefrom, [if registered Offered Securities and Warrants that are not then
---------------------------------------------------------------
detachable -- the person or persons in whose name the related Offered Securities
- ----------
shall be registered as set forth in the security register of the related Offered
Securities] [if bearer Offered Securities and Warrants that are not then
-----------------------------------------------------------
detachable -- the bearer of the related Offered Security], prior to the
- ----------
Detachable Date. [If registered Offered Securities and Warrants that are not
----------------------------------------------------------
then detachable -- The Company will, or will cause the security registrar of any
- ---------------
such Offered
<PAGE>
5
Securities to, make available to the Warrant Agent at all times (including on
and after the Detachable Date, in the case of Warrants originally issued with
Offered Securities and not subsequently transferred separately therefrom) such
information as to holders of Offered Securities with Warrants as may be
necessary to keep the Warrant Register up to date.]
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
2.01. Duration of Warrants. Each Warrant may be irrevocably
--------------------
exercised in whole but not in part at the time or times, or during the period or
periods, provided by or pursuant to the Board Resolution relating thereto and
specified in the Warrant Certificate evidencing such Warrant. Each Warrant not
exercised at or before 5:00 P.M., New York City time, on its Expiration Date
shall become void, and all rights of the Holder of such Warrant thereunder and
under this Agreement shall cease, provided, however, that the Company reserves
-------- -------
the right to, and may, in its sole discretion, at any time and from time to
time, at such time or times as the Company so determines, extend the Expiration
Date of the Warrants for such periods of time as it chooses; further provided
------- --------
that in no case may the Expiration Date of the Warrants (as extended) be
extended beyond five years from the Expiration Date set forth above. Whenever
the Expiration Date of the Warrants is so extended, the Company shall at least
20 days prior to the then Expiration Date cause to be mailed to the Warrant
Agent and the registered Holders of the Warrants in accordance with the
provisions of Section 6.05 hereof a notice stating that the Expiration Date has
been extended and setting forth the new Expiration Date.
2.02. Exercise of Warrants. (a) The Holder of a Warrant shall have
--------------------
the right, at its option, to exercise such Warrant and, subject to subsection
(f) of this Section 2.02, purchase the principal amount or number of shares of
Underlying Securities provided for therein at the time or times or during the
period or periods referred to in Section 2.01 and specified in the Warrant
Certificate evidencing such Warrant. Except as may be provided in a Warrant
Certificate, a Warrant may be exercised by completing the form of election to
purchase set forth on the reverse side of the Warrant Certificate, which shall
be substantially in the form set forth in Exhibit B hereto or as shall be
established by or pursuant to a Board Resolution, by duly executing and
delivering the same, together with payment in full of the Warrant Price in the
currency and manner of payment specified in the Board Resolution, to the Warrant
Agent at the corporate trust office of the Warrant Agent [or at
________________]. Except as may be provided in a Warrant Certificate, the date
on which such Warrant Certificate and payment are received by the Warrant Agent
as aforesaid shall be deemed to be the date on which the Warrant is exercised
and the Underlying Securities issued.
(b) As soon as practicable after the exercise of a Warrant, the
Company shall issue, pursuant to the Senior Indenture or Subordinated Indenture,
if applicable, in
<PAGE>
6
authorized denominations to or upon the order of the Holder of such Warrant, the
Underlying Securities to which such Holder is entitled, in [if registered
-------------
Underlying Securities -- fully registered form] [if registered or unregistered
- --------------------- -----------------------------
Underlying Securities -- the form required under such Senior Indenture or
- ---------------------
Subordinated Indenture, if applicable, or in the form otherwise required and, in
the case of Underlying Securities in registered form,] registered in such name
or names as may be directed by such Holder.
(c) If fewer than all of the Warrants evidenced by a Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall countersign and deliver, a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
(d) The Warrant Agent shall deposit all funds received by it in
payment of the Warrant Price in the account of the Company maintained with it
for such purpose and shall advise the Company by telephone by 5:00 P.M., New
York City time, of each day on which a payment of the Warrant Price for Warrants
is received of the amount so deposited in its account. The Warrant Agent shall
promptly confirm in writing to the Company such telephone advice.
(e) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Senior Indenture Trustee and the Subordinated Indenture
Trustee, if applicable, and the Company of (i) the number of Warrants of each
title exercised as provided herein, (ii) the instructions of each Holder with
respect to delivery of the Underlying Securities to which such Holder is
entitled upon such exercise, (iii) the delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining unexercised after such
exercise, and (iv) such other information as the Senior Indenture Trustee or the
Subordinated Indenture Trustee, if applicable, or the Company shall reasonably
require.
(f) The Company shall not be required to pay any stamp or other tax
or other governmental charge that may be imposed in connection with any transfer
involved in the issuance of the Underlying Securities; and in the event that any
such transfer is involved, the Company shall not be required to issue any
Underlying Securities (and the Holder's purchase of the Underlying Securities
upon the exercise of such Holder's Warrant shall not be deemed to have been
consummated) until such tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
2.03. Common Share Warrant Adjustments. The Warrant Price of a
--------------------------------
Warrant representing the right to purchase Common Shares (a "Common Share
------ -----
Warrant"), as such Warrant Price (the "Common Share Warrant Price") is set forth
- ------- ------ ----- ------- -----
in the Board Resolution, shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall pay a dividend or make a distribution
on the underlying Common Shares purchaseable through exercise of the Common
Share
<PAGE>
7
Warrants (the "Underlying Common Shares") in Common Shares, the Common
---------- ------ ------
Share Warrant Price in effect at the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be adjusted by
multiplying such Common Share Warrant Price by a fraction of which the
numerator shall be the number of Common Shares outstanding at the close of
business on the record date and the denominator shall be the sum of such
number of Common Shares and the total number of Common Shares constituting
such dividend or other distribution and the resulting adjusted Common Share
Warrant Price shall become effective immediately after the opening of
business on the day following the record date, except as provided in
subsection (i) below.
(b) In case the Company shall subdivide the outstanding Underlying
Common Shares into a greater number of Underlying Common Shares, the Common
Share Warrant Price in effect at the opening of business on the day
following the date upon which such subdivision becomes effective shall be
proportionately reduced, and conversely, in case the Company shall combine
the outstanding Underlying Common Shares into a smaller number of
Underlying Common Shares, the Common Share Warrant Price in effect at the
opening of business on the day following the date upon which such
combination becomes effective shall be proportionately increased, and the
resulting reduced or increased Common Share Warrant Price, as the case may
be, shall become effective immediately after the opening of business on the
day following the date upon which such subdivision or combination becomes
effective.
(c) In case the Company shall issue rights or warrants to all
holders of Common Shares entitling them (for a period expiring within 45
days after the record date mentioned below) to subscribe for or purchase
Common Shares at a price per share less than the current market price per
Common Share (as defined for purposes of this subparagraph (c) in
subparagraph (f) below), at the record date for the determination of
shareholders entitled to receive such rights or warrants, the Common Share
Warrant Price in effect after such record date shall be determined by
multiplying such Common Share Warrant Price by a fraction, the numerator of
which shall be the number of Common Shares outstanding on the record date
for issuance of such rights or warrants plus the number of Common Shares
which the aggregate offering price of the total number of Common Shares so
offered would purchase at such current market price, and the denominator of
which shall be the number of Common Shares outstanding on the record date
for issuance of such rights or warrants plus the number of additional
Common Shares receivable upon exercise of such rights or warrants. Such
adjustment shall be made successively whenever any such rights or warrants
are issued, and shall become effective immediately, except as provided in
subparagraph (i) below, after such record date. In determining whether any
rights or warrants entitle the holders of Common Shares to subscribe for or
purchase Common Shares at less than such current market price, and in
determining the aggregate offering price of such Common Shares, there shall
be taken into account any consideration received by the Company for such
rights or warrants plus the exercise
<PAGE>
8
price thereof, the value of such consideration or exercise price, as the
case may be, if other than cash, to be determined by the Board of
Directors.
(d) In case the Company shall distribute to all holders of Common
Shares any shares of capital stock of the Company (other than Common
Shares) or evidences of its indebtedness or assets (excluding cash
dividends or distributions paid from retained earnings of the Company or
dividends payable in Common Shares) or rights or warrants to subscribe for
or purchase any of its securities (excluding those rights or warrants
referred to in subparagraph (c) above) (any of the foregoing being
hereinafter in this subparagraph (d) called the "Distributed Securities"),
----------- ----------
then, in each such case, unless the Company elects to reserve such
Distributed Securities for distribution to the holders of the Common Share
Warrants upon the exercise of the Common Share Warrants so that any such
holder exercising Common Share Warrants will receive upon such exercise, in
addition to the Underlying Common Shares to which such holder is entitled,
the amount and kind of such Distributed Securities which such holder would
have received if such holder had, immediately prior to the record date for
the distribution of the Distributed Securities, exercised its Common Share
Warrants into Underlying Common Shares, the Common Share Warrant Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Common Share Warrant Price in effect immediately prior to
the date of such distribution by a fraction the numerator of which shall be
the current market price per Common Share (as defined for purposes of this
subparagraph (d) in subparagraph (f) below) on the record date mentioned
above less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall, if made in good faith,
be conclusive) of the portion of the Distributed Securities so distributed
allocable to one Common Share, and the denominator of which shall be the
then current market price per Common Share (determined as provided in
subparagraph (f) below); provided, however, that in the event the then fair
-------- -------
market value (as so determined) of the portion of the Distributed
Securities so distributed applicable to one Common Share is equal to or
greater than the current market price per Common Share (as defined in
subsection (f) below) on the record date mentioned above, in lieu of the
foregoing adjustment, adequate provision shall be made so that each holder
of Common Share Warrants shall have the right to receive the amount and
kind of Distributed Securities such holder would have received had he
exercised such Common Share Warrant immediately prior to the record date
for the distribution of the Distributed Securities. Such adjustment shall
become effective immediately, except as provided in subsection (i) below,
after the record date for the determination of stockholders entitled to
receive such distribution.
(e) If, pursuant to subparagraph (c) or (d) above, the Common Share
Warrant Price shall have been adjusted because the Company has declared a
dividend, or made a distribution, on the outstanding Underlying Common
Shares in the form of any right or warrant to purchase securities of the
Company, or the Company has issued any such right or warrant, then, upon
the expiration of any such unexercised
<PAGE>
9
right or unexercised warrant, the Common Share Warrant Price shall
forthwith be adjusted to equal the Common Share Warrant Price that would
have applied had such right or warrant never been declared, distributed or
issued.
(f) For the purposes of any computation under subparagraph (c) above,
the current market price per Common Share on any date shall be deemed to be
the average of the reported last sales prices for the thirty consecutive
Trading Days (as defined below) commencing forty-five Trading Days before
the date in question. For the purpose of any computation under
subparagraph (d) above, the current market price per Common Share on any
date shall be deemed to be the average of the reported last sales prices
for the ten consecutive Trading Days before the date in question. The
reported last sales price for each day (whether for purposes of
subparagraph (c) or subparagraph (d)) shall be the reported last sales
price, regular way, or, in case no sale takes place on such day, the
average of the reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange Composite Tape or,
if such Common Shares are not listed or admitted to trading on the New York
Stock Exchange at such time, on the principal national securities exchange
on which such Common Shares are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the
National Market System of the National Association of Securities Dealers,
Inc. Automated Quotations System ("NASDAQ") or, if such Common Shares are
------
not quoted on such National Market System, the average of the closing bid
and asked prices on such day in the over-the-counter market as reported by
NASDAQ or, if bid and asked prices for the Common Shares on each such day
shall not have been reported through NASDAQ, the average of the bid and
asked prices for such date as furnished by any New York Stock Exchange
member firm regularly making a market in such Common Shares selected for
such purpose by the Board of Directors of the Company or a committee
thereof or, if no such quotations are available, the fair market value of
such Common Share as determined by a New York Stock Exchange member firm
regularly making a market in the Common Shares selected for such purpose by
the Board of Directors of the Company or a committee thereof. As used in
this Section 2.03, the term "Trading Day" with respect to a Common Share
------- ---
means (x) if such Common Shares are listed or admitted for trading on the
New York Stock Exchange or another national securities exchange, a day on
which the New York Stock Exchange or such other national securities
exchange is open for business or (y) if such Common Shares are quoted on
the National Market System of the NASDAQ, a day on which trades may be made
on such National Market System or (z) otherwise, any day other than a
Saturday or Sunday or a day on which banking institutions in the State of
[New York] are authorized or obligated by law or executive order to close.
(g) No adjustment in the Common Share Warrant Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such Common Share Warrant Price; provided, however, that any
-------- -------
adjustments which by
<PAGE>
10
reason of this subparagraph (g) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment; and
provided further that adjustment shall be required and made in accordance
-------- -------
with the provisions of this Section 2.03 (other than this subsection (g))
not later than such time as may be required in order to preserve the tax
free nature of a distribution to the holders of Common Shares. All
calculations under this Section 2.03 shall be made to the nearest cent or
to the nearest .01 of a share, as the case may be, with one-half cent and
.005 of a share, respectively, being rounded upward. Anything in this
Section 2.03 to the contrary notwithstanding, the Company shall be entitled
to make such reductions in the Common Share Warrant Price, in addition to
those required by this subparagraph (g), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities,
or distribution of other assets (other than cash dividends) hereafter made
by the Company to its shareholders shall not be taxable.
(h) Whenever the Common Share Warrant Price is adjusted as herein
provided, the Company shall promptly file with the transfer agent a
certificate, signed by its Chairman of the Board, a Vice-Chairman, its
President or a Vice President (an "Adjustment Certificate"), setting forth
---------- -----------
the Common Share Warrant Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment, which Adjustment
Certificate shall be conclusive evidence of the correctness of such
adjustment; provided, however, that the failure of the Company to file such
-------- -------
Adjustment Certificate shall not invalidate any corporate action by the
Company.
(i) In any case in which this Section 2.03 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (x) issuing
to the holder of any Common Share Warrant converted after such record date
and before the occurrence of such event the additional shares of Underlying
Common Shares issuable upon such exercise by reason of the adjustment
required by such event over and above the Underlying Common Shares issuable
upon such exercise before giving effect to such adjustment and (y) paying
to such holder any amount of cash in lieu of any fractional share.
(j) Whenever the Common Share Warrant Price is adjusted as provided
in this Section 2.03, the Company shall, as promptly as practicable
thereafter, cause to be mailed to each Holder of Common Share Warrants at
its then registered address by first-class mail, postage prepaid, a notice
of such adjustment of the Common Share Warrant Price setting forth such
adjusted Common Share Warrant Price and the effective date of such adjusted
Common Share Warrant Price; provided, however, that the failure of the
-------- -------
Company to give such notice shall not invalidate any corporate action by
the Company.
(k) Whenever there shall be any change in the Common Share Warrant
Price hereunder, then there shall be an adjustment (to the nearest
hundredth of a
<PAGE>
11
share) in the number of Common Shares purchasable upon exercise of this
Common Share Warrant, which adjustment shall become effective at the time
such change in the Common Share Warrant Price becomes effective and shall
be made by multiplying the number of Common Shares purchasable upon
exercise of this Common Share Warrant immediately before such change in
the Common Share Warrant Price by a fraction the numerator of which is the
Common Share Warrant Price immediately before such change and the
denominator of which is the Common Share Warrant Price immediately after
such change. The Common Share Warrant Price per Common Share shall be
adjusted and readjusted from time to time as provided in this Section 2.03
and, as so adjusted or readjusted, shall remain in effect until a further
adjustment or readjustment thereof is required by this Section 2.03.
(l) The form of Warrant Certificate evidencing Common Share Warrants
(a "Common Share Warrant Certificate") need not be changed because of any
------ ----- ------- -----------
adjustment made pursuant to this Section 2.03, and Common Share Warrant
Certificates issued after such adjustment may state the same Common Share
Warrant Price and the same number of Common Shares as are stated in the
Common Share Warrant Certificates initially issued pursuant to this
Agreement. The Company, however, may at any time in its sole discretion
make any change in the form of Common Share Warrant Certificate that it may
deem appropriate to reflect such adjustment and that does not otherwise
affect the substance thereof, and any Common Share Warrant Certificate
thereafter issued or countersigned, whether in exchange or substitution for
an outstanding Common Share Warrant Certificate or otherwise, may be in the
form as so changed.
(m) Reference is made to the Company's Rights Agreement, dated as of
August 25, 1989, between the Company and Society National Bank, as
successor Rights Agent, as such Rights Agreement may be from time to time
amended, extended or otherwise modified, including any successor
agreement or other similar agreement entered into in replacement thereof
or substitution therefor (the "Rights Agreement"). Notwithstanding
anything to the contrary in this Section 2.03, no adjustment in the
Common Share Warrant Price shall be required pursuant to this Section
2.03 by virtue of the issuance of rights to purchase Common Shares of the
Company (each a "Right") pursuant to the Rights Agreement prior to such
Rights becoming exercisable upon a Triggering Event (as such term is from
time to time defined in the Rights Agreement) at a purchase price less
than the current market price per Common Share (as defined for purposes
of Section 2.03(c)). Upon the Rights becoming exercisable following a
Triggering Event at a purchase price less than the current market price
per Common Share, the Common Share Warrant Price of a Common Share Warrant
shall be adjusted in accordance with Section 2.03(c) above, as if the
Rights were issued to all holders of Common Shares on the date the
Triggering Event occurred, provided, however, that no such adjustment in
-------- -------
the Common Share Warrant Price of a Common Share Warrant shall be made if
Rights held by the holder of such Common Share Warrant would be voided in
accordance with the terms of the Rights Agreement, and, provided further,
-------- -------
that any adjustment to the Common Share Warrant Price made pursuant to
this Section 2.03(m) shall be subject to further adjustment in accordance
with Section 2.03(e) (including, without limitation, if any Rights become
void pursuant to the provisions of the Rights Agreement). Nothing in this
Section 2.03 shall be deemed to require the Company to maintain the
Rights Agreement or restrict the Company's ability to amend or terminate
the Rights Agreement in accordance with its terms.
2.04. Reservation of Shares. Prior to the issuance of any Common
---------------------
Share Warrants or any Warrants representing the right to purchase shares of
Preferred Stock ("Preferred Stock Warrants") or Depositary Shares ("Depositary
--------- ----- -------- ----------
Share Warrants") there shall have been reserved, and the Company shall at all
- ----- --------
times keep reserved, out of its authorized but unissued Common Shares and
Preferred Stock or its issued Common Shares or shares of
<PAGE>
12
Preferred Stock held in treasury, or both, a number of shares sufficient to
provide for the exercise of the Common Share Warrant Certificates and Warrant
Certificates evidencing Preferred Stock Warrants and Depositary Share Warrants.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANTS
3.01. No Rights as Holder of Underlying Security Conferred by
-------------------------------------------------------
Warrants or Warrant Certificates. No Warrant or Warrant Certificate shall
- --------------------------------
entitle the Holder to any of the rights of a holder of Underlying Securities,
including, without limitation, the right to receive the payment of principal of,
or premium, if any, on or interest, dividends or distributions of any kind, if
any on, Underlying Securities, the right to exercise any voting rights, or the
right to enforce any of the covenants in the Senior Indenture or Subordinated
Indenture, if applicable.
3.02. Lost, Stolen, Destroyed or Mutilated Warrant Certificates.
---------------------------------------------------------
Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity (other than in
connection with any mutilated Warrant Certificates surrendered to the Warrant
Agent for cancellation) reasonably satisfactory to them, in the absence of
notice to the Company or the Warrant Agent that the Warrant Certificate has been
acquired by a bona fide purchaser, the Company shall execute, and the Warrant
Agent shall countersign and deliver, in exchange for or in lieu of each lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate
evidencing a like number of Warrants of the same title. Upon the issuance of a
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any stamp or other tax or other governmental charge
that may be imposed in connection therewith and any other expenses (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall represent a
contractual obligation of the Company, whether or not such lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates, duly executed and delivered
hereunder, evidencing Warrants of the same title. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of lost, stolen, destroyed or
mutilated Warrant Certificates.
3.03. Holder of Warrants May Enforce Rights. Notwithstanding any of
-------------------------------------
the provisions of this Agreement, a Holder, without the consent of the Warrant
Agent, the Senior Indenture Trustee or the Subordinated Indenture Trustee, if
applicable, the holder of
<PAGE>
13
any Underlying Securities or the Holder of any other Warrant, may, on its own
behalf and for its own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or otherwise in
respect of, its right to exercise its Warrant or Warrants in the manner provided
in this Agreement and its Warrant Certificate.
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANTS
4.01. [Warrant Register;] Exchange and Transfer of Warrants. [If
---------------------------------------------------- --
registered Warrants -- The Warrant Agent shall maintain, at its corporate trust
- -------------------
office [or at __________], a register (the "Warrant Register") in which, upon
------- --------
the issuance of Warrants, or on and after the Detachable Date in the case of
Warrants not separately transferable prior thereto, and, subject to such
reasonable regulations as the Warrant Agent may prescribe, it shall register
Warrant Certificates and exchanges and transfers thereof. The Warrant Register
shall be in written form or in any other form capable of being converted into
written form within a reasonable time.]
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Warrant Agent [or at ________________], Warrant
Certificates may be exchanged for one or more other Warrant Certificates of
different denominations evidencing the same aggregate number of Warrants of the
same title, or may be transferred in whole or in part. A Warrant Certificate
evidencing Warrants that are not then transferable separately from the Offered
Security with which they were issued may be exchanged or transferred prior to
its Detachable Date only together with such Offered Security and only for the
purpose of effecting, or in conjunction with, an exchange or transfer of such
Offered Security; and on or prior to the Detachable Date, [if registered Offered
---------------------
Securities and Warrants -- each exchange or transfer of such Offered Security on
- -----------------------
the security register of the Offered Securities shall operate also to exchange
or transfer the related Warrants] [if bearer Offered Securities and Warrants --
-----------------------------------------
an exchange or transfer of possession of the related Offered Security shall
operate also to exchange or transfer the related Warrants]. [If registered
-------------
Warrants -- A transfer shall be registered upon surrender of a Warrant
- --------
Certificate to the Warrant Agent at its corporate trust office or at any other
office indicated in the Warrant Prospectus for transfer, properly endorsed or
accompanied by appropriate instruments of transfer and written instructions for
transfer, all in form satisfactory to the Company and the Warrant Agent.]
Whenever a Warrant Certificate is surrendered for exchange or transfer, the
Warrant Agent shall countersign and deliver to the person or persons entitled
thereto one or more Warrant Certificates duly executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
transfer which will result in the issuance of a Warrant Certificate evidencing a
fraction of a Warrant. All Warrant Certificates issued upon any exchange or
transfer of a Warrant Certificate shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the
<PAGE>
14
same benefits under this Agreement, as the Warrant Certificate surrendered for
such exchange or transfer.
No service charge shall be made for any exchange or transfer of
Warrants, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any such
exchange or transfer, in accordance with Section 2.02(f) hereof.
4.02. Treatment of Holders of Warrants. Every Holder of a Warrant,
--------------------------------
by accepting the Warrant Certificate evidencing the same, consents and agrees
with the Company, the Warrant Agent and with every other Holder of Warrants of
the same title that the Company and the Warrant Agent may treat the Holder of a
Warrant Certificate (or, if the Warrant Certificate is not then detachable, the
Holder of the related Offered Security) as the absolute owner of such Warrant
for all purposes and as the person entitled to exercise the rights represented
by such Warrant, any notice to the contrary notwithstanding.
4.03. Cancellation of Warrant Certificates. In the event that the
------------------------------------
Company shall purchase, redeem or otherwise acquire any Warrants after the
issuance thereof, the Warrant Certificate or Certificates evidencing such
Warrants shall thereupon be delivered to the Warrant Agent and be cancelled by
it. The Warrant Agent shall also cancel any Warrant Certificate (including any
mutilated Warrant Certificate) delivered to it for exercise, in whole or in
part, or for exchange [if registered Warrants -- or transfer] [if Warrant
---------------------- ----------
Certificates are issued in bearer form -- , except that Warrant Certificates
- --------------------------------------
delivered to the Warrant Agent in exchange for Warrant Certificates of other
denominations may be retained by the Warrant Agent for reissue]. Warrant
Certificates so cancelled shall be delivered by the Warrant Agent to the Company
from time to time, or disposed of in accordance with the instructions of the
Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
5.01. Warrant Agent. The Company hereby appoints
-------------
_______________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions set forth herein; and _______________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in any Warrant Certificate are subject to and governed by the terms
and provisions hereof.
<PAGE>
15
5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
-----------------------------------------
accepts its obligations set forth herein upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders shall be subject:
(a) Compensation and Indemnification. The Company agrees to
--------------------------------
promptly pay the Warrant Agent the compensation set forth in Exhibit C
hereto and to reimburse the Warrant Agent for reasonable out-of-pocket
expenses (including reasonable counsel fees) incurred by the Warrant Agent
in connection with the services rendered hereunder by the Warrant Agent.
The Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense (including the reasonable
costs and expenses of defending against any claim of liability) incurred
without negligence or bad faith on the part of the Warrant Agent arising
out of or in connection with its appointment as Warrant Agent hereunder.
(b) Agent for the Company. In acting under this Agreement and in
---------------------
connection with any Warrant Certificate, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligation or relationship
of agency or trust for or with any Holder.
(c) Counsel. The Warrant Agent may consult with counsel
-------
satisfactory to it, and the written advice of such 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 accordance with
the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
---------
incur no liability for or in respect of any action taken, suffered or
omitted by it in reliance upon any notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it
to be genuine and to have been presented or signed by the proper parties.
(e) Officer's Certificate. Whenever in the performance of its
---------------------
duties hereunder the Warrant Agent shall reasonably deem it necessary that
any fact or matter be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, the Warrant Agent may (unless
other evidence in respect thereof be herein specifically prescribed), in
the absence of bad faith on its part, rely upon a certificate signed by the
Chairman of the Board, a Vice-Chairman, the President, a Vice President,
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company (an "Officer's Certificate") delivered by the
--------- -----------
Company to the Warrant Agent.
(f) Actions Through Agents. The Warrant Agent may execute and
----------------------
exercise any of the rights or powers hereby vested in it or perform any
duty
<PAGE>
16
hereunder either itself or by or through its attorneys or agents, and the
Warrant Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct; provided, however, that
reasonable care shall have been exercised in the selection and continued
employment of such attorneys and agents.
(g) Certain Transactions. The Warrant Agent, and any officer,
--------------------
director or employee thereof, may become the owner of, or acquire any
interest in, any Warrant, with the same rights that he, she or it would
have if it were not the Warrant Agent, and, to the extent permitted by
applicable law, he, she or it may engage or be interested in any financial
or other transaction with the Company and may serve on, or as depositary,
trustee or agent for, any committee or body of holders of Underlying
Securities or other obligations of the Company as if it were not the
Warrant Agent. Nothing in this Agreement shall be deemed to prevent the
Warrant Agent from acting as Senior Indenture Trustee or Subordinated
Indenture Trustee.
(h) No Liability for Interest. The Warrant Agent shall not be
-------------------------
liable for interest on any monies at any time received by it pursuant to
any of the provisions of this Agreement or of the Warrant Certificates,
except as otherwise agreed with the Company.
(i) No Liability for Invalidity. The Warrant Agent shall incur no
---------------------------
liability with respect to the validity of this Agreement (except as to the
due execution hereof by the Warrant Agent) or any Warrant Certificate
(except as to the countersignature thereof by the Warrant Agent).
(j) No Responsibility for Company Representations. The Warrant
---------------------------------------------
Agent shall not be responsible for any of the recitals or representations
contained herein (except as to such statements or recitals as describe the
Warrant Agent or action taken or to be taken by it) or in any Warrant
Certificate (except as to the Warrant Agent's countersignature on such
Warrant Certificate), all of which recitals and representations are made
solely by the Company.
(k) No Implied Obligations. The Warrant Agent shall be obligated to
----------------------
perform only such duties as are specifically set forth herein, and no other
duties or obligations shall be implied. The Warrant Agent shall not be
under any obligation to take any action hereunder that may subject it to
any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not
be accountable or under any duty or responsibility for the use by the
Company of any Warrant Certificate countersigned by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the issuance or exercise of
Warrants. The Warrant Agent shall have no duty or responsibility in case
of any default by the Company in the performance of its covenants or
agreements contained herein or in any Warrant
<PAGE>
17
Certificate or in case of the receipt of any written demand from a Holder
with respect to such default, including, without limiting the generality of
the foregoing, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or, except as provided in
Section 6.03 hereof, to make any demand upon the Company.
5.03. Resignation and Removal; Appointment of Successor. (a) The
-------------------------------------------------
Company agrees, for the benefit of the Holders of the Warrants, that there shall
at all times be a Warrant Agent hereunder until all the Warrants are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice to the Company, specifying the date on which such resignation
shall become effective; provided that such date shall not be less than 90 days
after the date on which such notice is given, unless the Company agrees to
accept a shorter notice. The Warrant Agent may be removed at any time by the
filing with it of an instrument in writing signed on behalf of the Company and
specifying such removal and the date when it shall become effective.
Notwithstanding the two preceding sentences, such resignation or removal shall
take effect only upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under the laws of such
jurisdiction to exercise corporate trust powers and having at the time of its
appointment as Warrant Agent a combined capital and surplus (as set forth in its
most recent published report of condition) of at least $50,000,000) and the
acceptance of such appointment by such successor Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall file a petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy law or similar law, or make an assignment
for the benefit of its creditors, or consent to the appointment of a receiver or
custodian for all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver,
conservator or custodian for it or for all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered for
relief against it under the provisions of Title 11 of the United States Code, as
now constituted or hereafter amended, or under any other applicable federal or
state bankruptcy or similar law, or if any public officer shall have taken
charge or control of the Warrant Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the Warrant Agent so superseded
shall cease to be Warrant Agent hereunder.
<PAGE>
18
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, [if registered
-------------
Warrants -- the Warrant Register and] all monies, securities and other property
- --------
on deposit with or held by such predecessor (together with any books and records
relating thereto), as Warrant Agent hereunder.
(e) The Company shall cause notice of the appointment of any
successor Warrant Agent to be [if registered Warrants -- mailed by first-class
----------------------
mail, postage prepaid, to each Holder at its address appearing on the Warrant
Register or, in the case of Warrants that are issued with Offered Securities and
cannot then be transferred separately therefrom, on the security register of the
Offered Securities] [if bearer Warrants -- published in an Authorized Newspaper
------------------
(as defined in Section 101 of the Senior Indenture and the Subordinated
Indenture) in The City of New York [and in such other city or cities as may be
specified by the Company] at least twice within any seven-day period]. Such
notice shall set forth the name and address of the successor Warrant Agent.
Failure to give any notice provided for in this Section 5.03(e), or any defect
therein, shall not, however, affect the legality or validity of the appointment
of the successor Warrant Agent.
(f) Any person into which the Warrant Agent may be merged or
converted, or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all of its
assets and business, shall be the successor Warrant Agent under this Agreement
without the execution or filing of any paper, the giving of any notice to
Holders or any further act on the part of the parties hereto, provided that such
person be qualified as aforesaid.
5.04. Office. The Company will maintain an office or agency where
------
Warrant Certificates may be presented for exchange [if registered Warrants --,
----------------------
transfer] or exercise. The office initially designated for this purpose shall
be the corporate trust office of the Warrant Agent at ______________________.
<PAGE>
19
ARTICLE VI
MISCELLANEOUS
6.01. Reclassification, Consolidation, Merger, Sale or Conveyance.
-----------------------------------------------------------
(a) With respect to any issuance of Common Share Warrants, Preferred Stock
Warrants, and/or Depositary Share Warrants, (collectively, the "Equity
------
Warrants"), in case any of the following shall occur while any Equity Warrants
- --------
are outstanding: (i) any reclassification or changes of the outstanding Common
Shares, shares of Preferred Stock, and/or Depositary Shares (collectively, the
"Underlying Equity Securities") (other than a change in par value, or from par
- ----------- ------ ----------
value to no par value, or as a result of a subdivision or combination of the
Underlying Equity Securities); or (ii) any consolidation, merger or combination
of the Company with or into another corporation as a result of which holders of
Underlying Equity Securities shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Underlying Equity Securities; or (iii) any sale, conveyance, transfer or
lease of the property or assets of the Company as, or substantially as, an
entirety to any other entity as a result of which holders of Underlying Equity
Securities shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Underlying
Equity Securities; then the Company, or such successor or assuming corporation,
as the case may be, shall make appropriate provision by amendment of this
Agreement or otherwise so that the holders of the Equity Warrants then
outstanding shall have the right at any time thereafter, upon exercise of such
Equity Warrants, to receive the kind and amount of shares of stock and other
securities and property or assets receivable upon such reclassification, change,
consolidation, merger, combination, sale, conveyance, transfer or lease as would
be received by a holder of the number of shares of Underlying Equity Securities
issuable upon exercise of such Equity Warrant immediately prior to such
reclassification, change, consolidation, merger, combination, sale, conveyance,
transfer or lease, and, in the case of a consolidation, merger, combination,
sale, conveyance, transfer or lease where the Company is not the successor
corporation, the successor or assuming corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company, the Company shall thereupon be relieved of any further
obligation hereunder or under the Equity Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Equity Warrants issuable hereunder which theretofore
shall not have been signed by the Company, and may execute and deliver
Underlying Equity Securities in its own name, in fulfillment of its obligations
to deliver Underlying Equity Securities upon exercise of the Equity Warrants.
All the Equity Warrants so issued shall in all respects have the same legal rank
and benefit under this Agreement as the Equity Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Equity Warrants had been issued at the date of the execution hereof. In
any case of any such reclassification, change, consolidation, merger,
combination, sale, conveyance, transfer or lease, such changes in phraseology
and form (but
<PAGE>
20
not in substance) may be made in the Equity Warrants thereafter to be issued as
may be appropriate.
(b) With respect to any issuance of Warrants to purchase Senior Debt
Securities and/or Subordinated Debt Securities (collectively, the "Debt
----
Warrants"), to the extent permitted in the Senior Indenture and/or the
- --------
Subordinated Indenture, the Company may consolidate with, merge into or combine
with another corporation or other entity, or sell, convey, transfer or lease all
or substantially all of its properties and assets to any other corporation or
other entity. In case of any such consolidation, merger, combination, sale,
conveyance, transfer or lease where the Company is not the successor
corporation, the successor or assuming corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company, the Company shall thereupon be relieved of any further
obligation hereunder or under the Debt Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Debt Warrants issuable hereunder which theretofore
shall not have been signed by the Company, and may execute and deliver the
Senior Debt Securities and/or Subordinated Debt Securities purchaseable through
the exercise of the Debt Warrants (collectively, the "Underlying Debt
---------- ----
Securities") in its own name, in fulfillment of its obligations to deliver
- ----------
Underlying Debt Securities upon exercise of the Debt Warrants. All the Debt
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Debt Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Debt Warrants
had been issued at the date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger, combination, sale, conveyance,
transfer or lease, such changes in phraseology and form (but not in substance)
may be made in the Debt Warrants thereafter to be issued as may be appropriate.
(c) The Warrant Agent may receive a written opinion of legal counsel
as conclusive evidence that any such reclassification, change, consolidation,
merger, combination, sale, conveyance, transfer or lease, as the case may be,
complies with the provisions of this Section 6.01.
6.02. Supplements and Amendments. (a) The Company and the Warrant
--------------------------
Agent may from time to time supplement or amend this Agreement without the
approval of any Holder in order to cure any ambiguity, to correct or supplement
any provision contained herein that may be defective or inconsistent with any
other provision herein, or to make any other provision in regard to matters or
questions arising hereunder that the Company and the Warrant Agent may deem
necessary or desirable and that shall not adversely affect the interests of the
Holders. Every Holder of Warrants, whether issued before or after any such
supplement or amendment, shall be bound thereby. Promptly after the
effectiveness of any supplement or amendment that affects the interests of the
Holders, the Company shall give
<PAGE>
21
notice thereof, as provided in Section 5.03(e) hereof, to the Holders affected
thereby, setting forth in general terms the substance of such supplement or
amendment.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates with the consent of the Holders of not
fewer than a majority in number of the then outstanding unexercised Warrants
affected by such modification or amendment, for any purpose; provided, however,
-------- -------
that no such modification or amendment that shortens the period of time during
which the Warrants may be exercised, or otherwise materially and adversely
affects the exercise rights of the Holders or reduces the percentage of Holders
of outstanding Warrants the consent of which is required for modification or
amendment of this Agreement or the Warrants, may be made without the consent of
each Holder affected thereby.
6.03. Notices and Demands to the Company and Warrant Agent. If the
----------------------------------------------------
Warrant Agent shall receive any notice or demand addressed to the Company by a
Holder pursuant to the provisions of this Agreement or a Warrant Certificate
(other than notices relating to the exchange [if registered Warrants --,
----------------------
transfer] or exercise of Warrants), the Warrant Agent shall promptly forward
such notice or demand to the Company.
6.04. Addresses. Any communications from the Company to the Warrant
---------
Agent with respect to this Agreement shall be directed to
___________________________________, Attention: __________________, any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be directed to KeyCorp, 127 Public Square, Cleveland, Ohio,
44114-1306, Attention: Treasurer, with a copy to the Secretary (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company), telephone number (216) 689-3000 and any communications from the
Company or the Warrant Agent to the Senior Indenture Trustee or the Subordinated
Indenture Trustee with respect to this Agreement shall be directed to
_____________________________________, Attention: __________________. The
Company shall inform the Warrant Agent of any change in the address of the
Senior Indenture Trustee or the Subordinated Indenture Trustee as soon as
practicable after it learns of any such change.
6.05. Applicable Law. The validity, interpretation and performance
--------------
of this Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions thereof shall be governed by and construed in
accordance with the laws of the State of New York.
6.06. Delivery of Prospectus. The Company will furnish to the
----------------------
Warrant Agent sufficient copies of a prospectus or prospectuses, including any
prospectus supplements, relating to the Underlying Securities deliverable upon
exercise of any outstanding Warrants (each a "Prospectus"), and the Warrant
----------
Agent agrees to deliver a Prospectus to the Holder of a Warrant prior to or
concurrently with the delivery of the Underlying Securities issued upon such
exercise.
<PAGE>
22
6.07. Obtaining Governmental Approvals. The Company will take such
--------------------------------
action as may be necessary to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities, and will make
all filings under federal and state securities laws (including, without
limitation, the maintenance of the effectiveness of a registration statement in
respect of the Underlying Securities under the Securities Act of 1933), as may
be or become requisite in connection with the issuance, sale, transfer and
delivery of Warrants and Warrant Certificates, the exercise of Warrants and the
issuance, sale and delivery of Underlying Securities issued upon exercise of
Warrants.
6.08. Persons Having Rights Under Warrant Agreement. Nothing in this
---------------------------------------------
Agreement, expressed or implied, and nothing that may be inferred from any of
the provisions hereof is intended or shall be construed to confer upon or give
to any person or corporation other than the Company, the Warrant Agent and the
Holders any right, remedy or claim under or by reason of this Agreement or any
covenant, condition, stipulation, promise or agreement herein; and all
covenants, conditions, stipulations, promises and agreements herein shall be for
the sole and exclusive benefit of the Company, the Warrant Agent and their
respective successors and the Holders.
6.09. Headings. The descriptive headings of the several Articles and
--------
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
6.10. Counterparts. This Agreement may be executed in one or more
------------
counterparts and, when a counterpart has been executed by each party hereto, all
such counterparts taken together shall constitute one and the same agreement.
6.11. Inspection of Agreement. A copy of this Agreement shall be
-----------------------
available during business hours at the office of the Warrant Agent for
inspection by any Holder. The Warrant Agent may require such Holder to submit
its Warrant Certificate for inspection prior to making such copy available.
6.12. Acceleration of Warrants by the Corporation. (a) At any time
-------------------------------------------
on or after __________, the Corporation shall have the right to accelerate any
or all Warrants at any time by causing them to expire at the Close of Business
on the day next preceding a specified date (the "Acceleration Date"), if the
-----------------
Market Price (as hereinafter defined) of the Underlying Security or Securities
equals or exceeds ____________ percent (___%) of the then effective warrant
exercise price, adjusted as if no changes in such Warrant Price had been made
pursuant to Section 2.03, on any twenty (20) Trading Days (as hereinafter
defined) within a period of thirty (30) consecutive Trading Days ending no more
than five (5) Trading Days prior to the date on which the Corporation gives
notice to the Warrant Agent of its election to accelerate the Warrants.
(b) "Market Price" for each Trading Day shall be the last reported
------ -----
closing price regular way (or, if no such price is reported, the average of the
reported closing bid
<PAGE>
23
and asked prices regular way) reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading on the
New York Stock Exchange, or if the Underlying Security is not listed or admitted
to trading on such Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the principal national securities exchange on which the Underlying
Security is listed or admitted to trading, or if not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ, or such other system then in use, or if on any
such date the Underlying Securities are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by any New York Stock
Exchange firm selected from time to time by the Company for the purpose. For
the purposes of this Section 6.12, "Trading Day" shall be each Monday through
------- ---
Friday, other than any day on which securities are not traded in the system or
on the exchange that is the principal market for the Common Shares, as
determined by the Board of Directors of the Company.
(c) In the event of an acceleration of less than all of the
Warrants, the Warrant Agent shall select the Warrants to be accelerated by lot,
pro rata or in such other manner as it deems, in its discretion, to be fair and
appropriate.
(d) Notice of an acceleration specifying the Acceleration Date
shall be sent by mailing first class, postage prepaid, to each registered Holder
of a Warrant Certificate representing a Warrant accelerated at such Holder's
address appearing on the [Warrant Register] not more than sixty (60) days nor
less than thirty (30) days before the Acceleration Date. Such notice of an
acceleration also shall be given no more than twenty (20) days, and no less than
ten (10) days, prior to the mailing of notice to registered Holders of Warrants
pursuant to this Section, by publication at least once in a newspaper of general
circulation in the City of New York, New York.
(e) Any Warrant accelerated may be exercised until 3:30 P.M. New
York City time on the business day next preceding the Acceleration Date. The
warrant exercise price shall be payable as provided in Section 2.02.
<PAGE>
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
KEYCORP
[Seal]
By ___________________________________
Attest: Name:
----
Title:
-----
___________________________________
Name:
- ----
Title:
- -----
_______________________________________
[Seal]
Attest: By ___________________________________
Name:
----
Title:
-----
___________________________________
Name:
- ----
Title:
- -----
<PAGE>
Exhibit A to Warrant Agreement
[FORM OF REGISTERED WARRANT CERTIFICATE]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
[Form of Legend if Prior to _______ this
Offered Securities with Warrant Certificate
Warrants which are not cannot be transferred
immediately detachable. or exchanged unless
attached to a [Title of
Offered Securities].]
[Form of Legend if Prior to _______
Warrants are not Warrants evidenced by
immediately exercisable. evidenced by this
Warrant Certificate
cannot be exercised.]
No. CUSIP No. [_______]
WARRANT CERTIFICATE
representing
[up to _________] Warrants
Expiring [________________________]
KEYCORP
This certifies that [_______________] or registered assigns is the
registered holder of [____________] Warrants (the "Warrants") or such lesser
--------
amount as is indicated in the records of [name of Warrant Agent], as Warrant
Agent. Each Warrant entitles the beneficial owner thereof, subject to the
provisions contained herein and in the Warrant Agreement referred to below,
[*subject to the registered owner qualifying as a "Holder" of this Warrant
Certificate, as hereinafter defined] to purchase, at any time [after 5:00 P.M.,
New York City time, on ________, 19__ and on or before 5:00 P.M., New York City
time, on ________, 19__], [aggregate
- ----------
* Include if Warrants are issued with Offered Securities which are not
immediately detachable.
<PAGE>
A-2
principal amount or number of shares of [title of Underlying Securities]] of
KeyCorp (the "Company") on the following basis: during the period from
-------
________, 19__, through and including ________, 19__ the exercise price of each
Warrant will be _______; during the period from ________, 19__, through and
including ________, 19__, the exercise price of each Warrant will be _________
(the "Warrant Price"), subject to such adjustments as provided in Section 2.03
------- -----
of the Warrant Agreement (as defined below). Other than as provided in Section
2.03 of the Warrant Agreement, no adjustment shall be made for any dividends on
any Common Shares issuable upon exercise of any Warrant. The Holder may
exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full [in lawful money of the United
States of America] [in cash or by certified check or official bank check or by
bank wire transfer, in each case,] [by bank wire transfer] in [immediately
available] [next day] funds, the Warrant Price for each Warrant exercised to the
Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its successor as warrant
agent, which is, on the date hereof, at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).
The term "Holder" as used herein shall mean [*, prior to ___________
(the "Detachable Date"), the registered owner of the Company's [title of Offered
---------- ----
Securities] (the "Offered Securities") to which this Warrant Certificate is
------- ----------
initially attached, and after such Detachable Date,] the person in whose name at
the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose. The Warrants may be exercised
at or prior to [____ P.M.], New York City time, on any New York Business Day
from their date of issuance until [____ P.M.], New York City time, on
[____________, 19__] (the "Expiration Date"). [Not fewer than [_____] Warrants
---------- ----
may be exercised by or on behalf of any one Holder on any one day.] The term
"New York Business Day", as used herein, means any day other than a Saturday or
Sunday or a day on which commercial banks in The City of New York are required
or authorized to be closed.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of [____________, 19__] (the "Warrant Agreement"),
------- ---------
between the Company and the Warrant Agent, and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions all Holders of the Warrants represented by Warrant Certificates
consent by acceptance hereof. Copies of the Warrant Agreement are on file at
the principal corporate trust office of the Warrant Agent in New York City.
Capitalized terms included herein but not defined herein have the
meanings assigned thereto in the Warrant Agreement.
- ----------
* Include if Warrants are issued with Offered Securities which are not
immediately detachable.
<PAGE>
A-3
[*Prior to ________, 19__, this Warrant Certificate may be exchanged
or transferred only together with the Offered Securities to which this Warrant
Certificate was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security. After such
date, this Warrant may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or at
______________] by the registered owner or such owner's assigns, in person or by
an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
Except as provided in the immediately preceding paragraph, after
countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or at ________________] for Warrant
Certificates representing the same aggregate number of Warrants.]
[**Transfer of this Warrant may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent by
the registered owner or such owner's assigns, in person or by an attorney duly
authorized in writing, in the manner and subject to the limitations provided in
the Warrant Agreement.
After countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or at
___________________] for Warrant Certificates representing the same aggregate
number of Warrants.]
This Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of Underlying Securities, including, without limitation,
the right to receive the payment of principal of, or premium, if any, on or
interest, dividends or distributions of any kind, if any on, Underlying
Securities, the right to exercise any voting rights or the right to enforce any
of the covenants in the Senior Indenture or Subordinated Indenture, if
applicable.
Subject to the terms of the Warrant Agreement, upon due presentment
for registration of transfer of this Warrant Certificate at the principal
corporate trust office of the Warrant Agent in New York City or at any other
office indicated in the Prospectus Supplement accompanying the sale of this
Warrant, the Company shall execute and the Warrant Agent shall countersign and
deliver in the name of the designated transferee a new Warrant Certificate of
like tenor and representing a like number of unexercised Warrants as
- ----------
* Include if Warrants are issued with Offered Securities which are not
immediately detachable.
** Include if Warrants are issued alone or with Offered Securities which are
immediately detachable.
<PAGE>
A-4
evidenced by this Warrant Certificate at the time of such registration of
transfer which shall be issued to the designated transferee in exchange for this
Warrant Certificate, subject to the limitations provided in the Warrant
Agreement, without charge.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
The validity, interpretation and performance of this Warrant
Certificate and the terms and provisions hereof shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated as of [___________________________].
KEYCORP
By: ______________________________
[title]
[SEAL]
Attest: ___________________________________
[title]
Countersigned on the date
above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By: ___________________________
[title]
<PAGE>
Exhibit B to Warrant Agreement
Form of Warrant Exercise Notice
-------------------------------
[NAME OF WARRANT AGENT], as Warrant Agent
_________________________
Attention: ______________
[Address]
[Facsimile: _____________]
[Telephone: _____________]
[Telex: _________________]
Re: Exercise of KeyCorp Warrants Expiring
[___________________________] ("Warrants")
--------
The undersigned hereby irrevocably elects to exercise
__________________ Warrants, evidenced by this Warrant Certificate, to purchase
[aggregate principal amount or number of shares of [title of Underlying
Securities]] of KeyCorp and represents that the undersigned has tendered payment
for such [title of Underlying Securities] [in lawful money of the United States
of America] [in cash or by certified check or official bank check or by bank
wire transfer, in each case,] [by bank wire transfer] in [immediately available]
[next day] funds to the order of KeyCorp, c/o [name of Warrant Agent],
[__________________, New York, New York _____], in the amount of _________ in
accordance with the terms hereof. The undersigned requests that [aggregate
principal amount or number of shares of [title of Underlying Securities]] be in
[fully registered form] [in the form required under the Senior Indenture or the
Subordinated Indenture, if applicable, or in the form otherwise required] in the
authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining
<PAGE>
B-2
Warrants evidenced hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
Dated: __________________________ Name _______________________________
_________________________________ Address ___________________________
_________________________________
(Insert social security or other
identifying number of holder of
Warrant)
Signature Guaranteed ____________ Signature ______________________________
(Signature must conform in all
respects to name of holder of
Warrant as specified on the
Warrant Certificate and must bear
a signature guarantee by a bank,
trust company or member broker of
the New York, Midwest or Pacific
Stock Exchange)
The Warrant(s) evidenced hereby may be exercised at the following
addresses:
By hand at _____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
By mail at _____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
[Instructions as to form and delivery of [Underlying Securities] and,
if applicable, Warrant Certificates evidencing unexercised Warrants -- complete
as appropriate.]
<PAGE>
Exhibit C to Warrant Agreement
[Compensation of Warrant Agent]
<PAGE>
Exhibit (4)(h)
[FORM OF REGISTERED WARRANT CERTIFICATE]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
[Form of Legend if Prior to _______ this
Offered Securities with Warrant Certificate
Warrants which are not cannot be transferred
immediately detachable. or exchanged unless
attached to a [Title of
Offered Securities].]
[Form of Legend if Prior to _______
Warrants are not Warrants evidenced by
immediately exercisable. evidenced by this
Warrant Certificate
cannot be exercised.]
No. CUSIP No. [_______]
WARRANT CERTIFICATE
representing
[up to _________] Warrants
Expiring [________________________]
KEYCORP
This certifies that [_______________] or registered assigns is the
registered holder of [____________] Warrants (the "Warrants") or such lesser
--------
amount as is indicated in the records of [name of Warrant Agent], as Warrant
Agent. Each Warrant entitles the beneficial owner thereof, subject to the
provisions contained herein and in the Warrant Agreement referred to below,
[/*/subject to the registered owner qualifying as a "Holder" of this Warrant
Certificate, as hereinafter defined] to purchase, at any time [after 5:00 P.M.,
New York City time, on ________, 19__ and on or before 5:00 P.M., New York City
time, on ________, 19__], [aggregate principal amount or number of shares of
[title of Underlying Securities]] of KeyCorp (the "Company") on the following
-------
basis: during the period from ________, 19__, through and
- -------------------------------
/*/ Include if Warrants are issued with Offered Securities which are not
immediately detachable.
<PAGE>
2
including ________, 19__ the exercise price of each Warrant will be _______;
during the period from ________, 19__, through and including ________, 19__, the
exercise price of each Warrant will be _________ (the "Warrant Price"), subject
------- -----
to such adjustments as provided in Section 2.03 of the Warrant Agreement (as
defined below). Other than as provided in Section 2.03 of the Warrant
Agreement, no adjustment shall be made for any dividends on any Common Shares
issuable upon exercise of any Warrant. The Holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof
and by paying in full [in lawful money of the United States of America] [in cash
or by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in [immediately available] [next day] funds, the
Warrant Price for each Warrant exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the purchase form on
the back hereof duly executed, at the corporate trust office of [name of Warrant
Agent], or its successor as warrant agent, which is, on the date hereof, at the
address specified on the reverse hereof, and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term "Holder" as used herein shall mean [/*/, prior to ___________
(the "Detachable Date"), the registered owner of the Company's [title of Offered
---------- ----
Securities] (the "Offered Securities") to which this Warrant Certificate is
------- ----------
initially attached, and after such Detachable Date,] the person in whose name at
the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose. The Warrants may be exercised
at or prior to [____ P.M.], New York City time, on any New York Business Day
from their date of issuance until [____ P.M.], New York City time, on
[____________, 19__] (the "Expiration Date"). [Not fewer than [_____] Warrants
---------- ----
may be exercised by or on behalf of any one Holder on any one day.] The term
"New York Business Day", as used herein, means any day other than a Saturday or
Sunday or a day on which commercial banks in The City of New York are required
or authorized to be closed.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of [____________, 19__] (the "Warrant Agreement"),
------- ---------
between the Company and the Warrant Agent, and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions all Holders of the Warrants represented by Warrant Certificates
consent by acceptance hereof. Copies of the Warrant Agreement are on file at
the principal corporate trust office of the Warrant Agent in New York City.
Capitalized terms included herein but not defined herein have the
meanings assigned thereto in the Warrant Agreement.
/*/ Include if Warrants are issued with Offered Securities which are not
immediately detachable.
<PAGE>
3
[/*/Prior to ________, 19__, this Warrant Certificate may be exchanged
or transferred only together with the Offered Securities to which this Warrant
Certificate was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security. After such
date, this Warrant may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or at
______________] by the registered owner or such owner's assigns, in person or by
an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
Except as provided in the immediately preceding paragraph, after
countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or at ________________] for Warrant
Certificates representing the same aggregate number of Warrants.]
[/**/Transfer of this Warrant may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent by
the registered owner or such owner's assigns, in person or by an attorney duly
authorized in writing, in the manner and subject to the limitations provided in
the Warrant Agreement.
After countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or at
___________________] for Warrant Certificates representing the same aggregate
number of Warrants.]
This Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of Underlying Securities, including, without limitation,
the right to receive the payment of principal of, or premium, if any, on or
interest, dividends or distributions of any kind, if any on, Underlying
Securities, the right to exercise any voting rights or the right to enforce any
of the covenants in the Senior Indenture or Subordinated Indenture, if
applicable.
Subject to the terms of the Warrant Agreement, upon due presentment
for registration of transfer of this Warrant Certificate at the principal
corporate trust office of the Warrant Agent in New York City or at any other
office indicated in the Prospectus Supplement accompanying the sale of this
Warrant, the Company shall execute and the Warrant Agent shall countersign and
deliver in the name of the designated transferee a new Warrant Certificate of
like tenor and representing a like number of unexercised Warrants as
- -------------------------------
/*/ Include if Warrants are issued with Offered Securities which are not
immediately detachable.
/**/ Include if Warrants are issued alone or with Offered Securities which are
immediately detachable.
<PAGE>
4
evidenced by this Warrant Certificate at the time of such registration of
transfer which shall be issued to the designated transferee in exchange for this
Warrant Certificate, subject to the limitations provided in the Warrant
Agreement, without charge.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
The validity, interpretation and performance of this Warrant
Certificate and the terms and provisions hereof shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated as of [___________________________].
KEYCORP
By:______________________________
[title]
[SEAL]
Attest: ______________________________
[title]
Countersigned on the date
above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By: ___________________________
[title]
<PAGE>
Exhibit (4)(i)
- --------------------------------------------------------------------------------
----------------------------------------------
DEPOSIT AGREEMENT
----------------------------------------------
Dated as of _____________________, 199__
among
KEYCORP
and
________________________________________________________, as Depositary
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
Parties....................................................... 1
Recitals...................................................... 1
ARTICLE I
DEFINITIONS
SECTION 1.01. "Agent"................................... 1
SECTION 1.02. "Articles of Incorporation"............... 1
SECTION 1.03. "Capital Securities"...................... 1
SECTION 1.04. "Certificate of Amendment"................ 1
SECTION 1.05. "Common Shares"........................... 2
SECTION 1.06. "Company"................................. 2
SECTION 1.07. "Corporate Office"........................ 2
SECTION 1.08. "Deposit Agreement"....................... 2
SECTION 1.09. "Depositary".............................. 2
SECTION 1.10. "Depositary Share"........................ 2
SECTION 1.11. "Holder".................................. 2
SECTION 1.12. "Preferred Stock"......................... 2
SECTION 1.13. "Receipt"................................. 2
SECTION 1.14. "Registrar"............................... 3
SECTION 1.15. "Securities Act".......................... 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION, AND EXCHANGE OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts...... 3
SECTION 2.02. Deposit of Preferred Stock; Execution and
Delivery of Receipts in Respect Thereof.. 4
SECTION 2.03. Redemption of Preferred Stock at the
Option of the Company.................... 5
SECTION 2.04. Conversion of Preferred Stock at the
Option of the Company.................... 7
SECTION 2.05. Registration of Transfer of Receipts...... 9
SECTION 2.06. Combinations and Split-ups of Receipts... 10
SECTION 2.07. Surrender of Receipts and Withdrawal of
Preferred Stock ......................... 10
SECTION 2.08. Limitations on Execution and Delivery,
Transfer, Split-up, Combination,
Surrender, and Exchange of Receipts...... 11
SECTION 2.09. Lost Receipts, etc........................ 12
SECTION 2.10. Cancellation and Destruction of
Surrendered Receipts..................... 12
<PAGE>
ii
TABLE OF CONTENTS
(continued)
Page
SECTION 2.11. Conversion of Preferred Stock at the
Option of the Holder...................... 12
SECTION 2.12. Redemption of Preferred Stock at the
Option of the Holder...................... 15
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates, and Other
Information............................... 17
SECTION 3.02. Payment of Fees and Expenses............... 18
SECTION 3.03. Representations and Warranties as to
Preferred Stock and Depositary Shares..... 18
SECTION 3.04. Covenants and Representation and Warranty
as to Common Shares and Other Capital
Securities................................ 18
SECTION 3.05. Representation and Warranty as to Debt
Securities................................ 19
ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. Cash Distributions........................ 19
SECTION 4.02. Distributions Other than Cash............. 20
SECTION 4.03. Subscription Rights, Preferences, or
Privileges................................ 20
SECTION 4.04. Notice of Dividends; Fixing of Record Date
for Holders of Receipts................... 21
SECTION 4.05. Voting Rights.............................. 21
SECTION 4.06. Changes Affecting Preferred Stock and
Reclassifications, Recapitalizations, etc. 22
SECTION 4.07. Inspection of Reports...................... 23
SECTION 4.08. Lists of Receipt Holders................... 23
SECTION 4.09. Tax and Regulatory Compliance.............. 23
SECTION 4.10. Withholding................................ 23
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary and the
Registrar................................. 23
<PAGE>
iii
TABLE OF CONTENTS
(continued)
Page
SECTION 5.02. Prevention of or Delay in Performance by
the Depositary, Any Agent, the Registrar,
or the Company........................... 24
SECTION 5.03. Obligations of the Depositary, Any Agent,
the Registrar, and the Company........... 24
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary...... 26
SECTION 5.05. Corporate Notices and Reports............. 26
SECTION 5.06. Indemnification by the Company............ 27
SECTION 5.07. Taxes, Charges, Fees, and Expenses........ 27
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment................................. 28
SECTION 6.02. Termination............................... 28
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts.............................. 30
SECTION 7.02. Exclusive Benefits of Parties............. 30
SECTION 7.03. Invalidity of Provisions.................. 30
SECTION 7.04. Notices................................... 30
SECTION 7.05. Holders of Receipts Are Parties........... 31
SECTION 7.06. Governing Law............................. 31
SECTION 7.07. Inspection of Deposit Agreement and
Certificate of Amendment................. 31
SECTION 7.08. Headings.................................. 31
TESTIMONIUM.............................................. 32
SIGNATURES............................................... 32
EXHIBIT A FORM OF DEPOSITARY RECEIPT
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ________, 199__, among KeyCorp, an Ohio
corporation, ___________________________, as Depositary (as defined below), and
all Holders (as defined below) from time to time of the Receipts (as defined
below) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit by the Company of shares of the Company's
Preferred Stock (as defined below) with the Depositary for the purposes set
forth in this Deposit Agreement and for the issuance hereunder of the Receipts
evidencing Depositary Shares (as defined below) representing an interest in the
Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications,
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it
is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply, for all purposes unless
otherwise indicated or the context otherwise requires, to the respective terms
(in the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
SECTION 1.01. "Agent" shall mean any agent of the Depositary
-----
appointed by the Depositary from time to time to act in any respect for the
Depositary for purposes of this Deposit Agreement and the appointment of which
may be modified or terminated by the Depositary. The Depositary will notify the
Company of any such action.
SECTION 1.02. "Articles of Incorporation" shall mean the Amended and
-------------------------
Restated Articles of Incorporation, as further amended and/or restated from time
to time, of the Company.
SECTION 1.03. "Capital Securities" shall mean Capital Securities of
------------------
the Company, which may consist of Common Shares, perpetual Preferred Stock, or
other equity securities acceptable to the Company's primary federal banking
regulator.
SECTION 1.04. "Certificate of Amendment" shall mean the Certificate
------------------------
of Amendment of the Articles of Incorporation of the Company filed with the
Secretary of State
<PAGE>
2
of the State of Ohio establishing the Preferred Stock as a class or series of
the Company's preferred stock.
SECTION 1.05. "Common Shares" shall mean the Company's Common Shares,
-------------
with a par value of $1 each.
SECTION 1.06. "Company" shall mean KeyCorp, an Ohio corporation, and
-------
its successors.
SECTION 1.07. "Corporate Office" shall mean the corporate office of
----------------
the Depositary in the Borough of Manhattan, The City of New York, at which at
any particular time its business in respect of matters governed by this Deposit
Agreement shall be administered, which at the date of this Deposit Agreement is
located at __________.
SECTION 1.08. "Deposit Agreement" shall mean this agreement, as the
-----------------
same may be amended, modified, or supplemented from time to time.
SECTION 1.09. "Depositary" shall mean _________, a company having its
----------
principal office in the United States and having a combined capital and surplus
of at least $50,000,000, and any successor as depositary hereunder.
SECTION 1.10. "Depositary Share" shall mean an interest in one of
----------------
a share of Preferred Stock deposited by the Company with the Depositary
hereunder and the same proportionate interest in any and all other property
received by the Depositary in respect of such share of Preferred Stock and held
under this Deposit Agreement, all as evidenced by the Receipts issued hereunder.
Subject to the terms of this Deposit Agreement, each owner of a Depositary Share
is entitled, proportionately, to all the rights, preferences and privileges of
the Preferred Stock represented by such Depositary Share, including any and all
dividend, voting, redemption, conversion, and liquidation rights provided for in
the Certificate of Amendment.
SECTION 1.11. "Holder", as applied to a Receipt, shall mean the
------
person in whose name an outstanding Receipt is registered on the books
maintained by the Depositary for such purpose, and such person's successors.
SECTION 1.12. "Preferred Stock" shall mean shares of the Company's
---------------
___ Preferred Stock, [Series] ___, as specified in the Certificate of Amendment,
with a par value of $1 each.
SECTION 1.13. "Receipt" shall mean a depositary receipt issued
-------
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.
<PAGE>
3
SECTION 1.14. "Registrar" shall mean any bank or trust company
---------
appointed to register ownership and transfers of Receipts as herein provided.
SECTION 1.15. "Securities Act" shall mean the Securities Act of 1933,
--------------
as amended.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION, AND EXCHANGE OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive
------------------------------------
Receipts shall be engraved, printed, or lithographed, with steel-engraved
borders and underlying tint, and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation
of definitive Receipts, the Depositary, upon the written order of the Company or
any Holder of Preferred Stock, as the case may be, delivered in compliance with
Section 2.02, shall execute and deliver temporary Receipts, which may be
printed, lithographed, typewritten, reproduced, or otherwise, substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions, and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Corporate Office or such other office or offices, if
any, as the Depositary may designate, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Receipts, the Depositary
shall execute and deliver in exchange therefor definitive Receipts representing
the same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense and
without any charge to the Holder therefor. Until so exchanged, the temporary
Receipts shall in all respects be entitled to the same benefits under this
Agreement, and with respect to the Preferred Stock deposited hereunder, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized signatory of the Depositary; provided, however, that such
-------- -------
signature may be a facsimile if a Registrar (other than the Depositary) shall
have countersigned the Receipts by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding sentence. The Depositary shall
record on its books maintained for such purpose each Receipt executed as
provided above and delivered as hereinafter provided.
<PAGE>
4
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Preferred Stock, the
Depositary Shares, or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
-------- -------
until transfer of a Receipt shall be registered on the books of the Depositary
as provided in Section 2.05, the Depositary may, notwithstanding any notice to
the contrary, treat the Holder thereof at such time as the absolute owner
thereof for the purpose of determining the person entitled to receive dividends
and other distributions and notices provided for in this Deposit Agreement and
for all other purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of
-----------------------------------------------------
Receipts in Respect Thereof. Subject to the terms and conditions of this
- ---------------------------
Deposit Agreement, the Company may from time to time deposit Preferred Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Preferred Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
(i) all such certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement and (ii) a written order of the
Company directing the Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order a Receipt or Receipts for
the number of Depositary Shares representing such deposited Preferred Stock.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock to be deposited hereunder, together with the other documents
specified above, the Depositary shall, as soon as transfer and registration can
be accomplished, present such certificate or certificates to the registrar and
transfer agent of the Preferred Stock for transfer and registration in the name
of the Depositary or its nominee of the Preferred Stock being deposited.
Deposited Preferred Stock shall be held by the Depositary in an account to be
established by the Depositary at the Corporate Office or at such other office as
the Depositary shall determine.
<PAGE>
5
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock to be deposited hereunder, together with the other documents
specified above, and upon registration of the Preferred Stock on the books of
the Company in the name of the Depositary or its nominee, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver to or upon the order of the person or persons named in the written order
delivered to the Depositary referred to in the first paragraph of this Section
2.02, a Receipt or Receipts for the number of whole Depositary Shares
representing the Preferred Stock so deposited, registered in such name or names
as may be requested by such person or persons. The Depositary shall execute and
deliver such Receipt or Receipts at the Corporate Office (or at such other
office, if any, as the Depositary shall determine), except that, at the request,
risk, and expense of any person requesting such delivery, such delivery may be
made at such other place as may be designated by such person. In each case,
execution and delivery will be made only upon payment by the Company to the
Depositary of all taxes and other governmental charges and any fees payable in
connection with such deposit and the transfer of the deposited Preferred Stock.
Other than in the case of splits, combinations, or other
reclassifications affecting the Preferred Stock, or in the case of dividends or
other distributions of Preferred Stock, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred Stock as
set forth in the Certificate of Amendment, as it may be amended.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
SECTION 2.03. Redemption of Preferred Stock at the Option of the
--------------------------------------------------
Company. If the Certificate of Amendment provides for redemption of the
- -------
Preferred Stock at the option of the Company, the Company (unless otherwise
agreed in writing with the Depositary), whenever it elects to redeem shares of
Preferred Stock, shall give the Depositary not less than 45 nor more than 90
days' prior written notice of the date of such proposed redemption and of the
number of shares of Preferred Stock held by the Depositary to be redeemed and
the applicable redemption price, as set forth in the Certificate of Amendment,
including the amount, if any, of accrued and unpaid dividends to the date of
such redemption provided for therein, which notice shall be accompanied by a
certificate from the Company stating that such redemption of Preferred Stock is
in accordance with the provisions of the Certificate of Amendment. On the date
of such redemption, provided that the Company shall have paid such redemption
price, plus, to the extent provided in the Certificate of Amendment, any accrued
and unpaid dividends on the Preferred Stock to be redeemed, in full to the
Depositary on or prior to the date of such redemption, the Depositary shall
redeem (using the proceeds of such redemption) the number of Depositary Shares
representing such Preferred Stock so redeemed by the Company. The Depositary
shall mail, first-class postage prepaid, notice of the redemption of Preferred
Stock and the proposed simultaneous redemption of the Depositary Shares
representing the Preferred Stock
<PAGE>
6
to be redeemed, not less than 30 nor more than 60 days prior to the date fixed
for redemption of such Preferred Stock and Depositary Shares (the "Redemption
----------
Date"), to the Holders on the record date fixed for such redemption, pursuant to
- ----
Section 4.04 hereof, of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such Holders as the same appear on the records of
the Depositary; but neither failure to mail any such notice to one or more such
Holders nor any defect in any notice shall affect the sufficiency of the
redemption as to other Holders. The Company shall provide the Depositary with
such notice, and each such notice shall state: (i) the record date for the
purposes of such redemption; (ii) the Redemption Date; (iii) the number of
Depositary Shares to be redeemed; (iv) if fewer than all the Depositary Shares
held by any Holder are to be redeemed, the number of such Depositary Shares held
by such Holder to be so redeemed; (v) the redemption price per share of
Preferred Stock; (vi) the place or places where Receipts evidencing Depositary
Shares to be redeemed are to be surrendered for payment of the redemption price;
(vii) in the event that the Depositary Shares evidence Preferred Stock
redeemable or convertible into Common Shares or any other class or series of
Capital Securities at the option of the holder of such Preferred Stock, unless
otherwise specified in the Certificate of Amendment, that all such redemption or
conversion rights in respect of such Preferred Stock will terminate at the close
of business on such Redemption Date; and (viii) that, from and after the
Redemption Date, unless otherwise specified in the Certificate of Amendment,
dividends in respect of the Preferred Stock represented by the Depositary Shares
to be redeemed will cease to accrue and all other rights with respect to such
Depositary Shares (except the right to receive the redemption price, plus, to
the extent provided in the Certificate of Amendment, any accrued and unpaid
dividends on the Preferred Stock to be redeemed) will, to the extent of such
Depositary Shares, cease and terminate. If fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall
be selected by the Depositary by lot or pro rata (subject to rounding to avoid
fractions of the Depositary Shares) or in any other equitable manner, in each
case as may be determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Preferred Stock to be redeemed by it as set forth in the Company's
notice mailed by the Depositary in accordance with the preceding paragraph),
unless otherwise specified in the Certificate of Amendment, (i) all dividends in
respect of the shares of Preferred Stock called for redemption shall cease to
accrue; (ii) in the event that the Depositary Shares evidence Preferred Stock
redeemable or convertible into Common Shares or any other class or series of
Capital Securities at the option of the holder of such Preferred Stock, such
redemption or conversion rights in respect of such Preferred Stock shall
terminate at the close of business on such Redemption Date; (iii) the Depositary
Shares called for redemption shall be deemed no longer to be outstanding; and
(iv) all other rights of the Holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price, plus, to the extent
provided in the Certificate of Amendment, any accrued and unpaid dividends on
the Preferred Stock to be redeemed) shall, to the extent of such Depositary
Shares, cease and terminate. Upon surrender in accordance with said notice of
the Receipts evidencing such
<PAGE>
7
Depositary Shares (properly endorsed or assigned for transfer, if the Company or
the Depositary shall so require and the notice shall so state), such Depositary
Shares shall be redeemed at a redemption price per Depositary Share equal to
[specify fraction] of the redemption price per share paid in respect of the
shares of deposited Preferred Stock so redeemed pursuant to the Certificate of
Amendment plus any other money and other property, if any, represented by each
such Depositary Share, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated or accrued on the shares
of Preferred Stock to be so redeemed and have not theretofore been paid. The
foregoing shall be further subject to the terms and conditions of the
Certificate of Amendment.
If fewer than all of the Depositary Shares evidenced by a Receipt of a
Holder are called for redemption, the Depositary will deliver to such Holder of
such Receipt upon its surrender to the Depositary, together with payment of the
redemption price for the Depositary Shares called for redemption, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
The Depositary shall not be required (a) to issue, transfer, or
exchange any Receipts for a period beginning at the opening of business 15 days
next preceding any selection of Depositary Shares and Preferred Stock to be
redeemed and ending at the close of business on the day of the mailing of notice
of redemption of Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption in whole or in part, except as provided in the preceding paragraph of
this Section 2.03.
SECTION 2.04. Conversion of Preferred Stock at the Option of the
--------------------------------------------------
Company. If the Certificate of Amendment provides for conversion of the
- -------
Preferred Stock at the option of the Company, the Company (unless otherwise
agreed in writing with the Depositary), whenever it elects to convert shares of
Preferred Stock, shall give the Depositary not less than 45 nor more than 90
days' prior written notice of the date of such proposed conversion and of the
number of shares of Preferred Stock held by the Depositary to be converted and
the applicable conversion rate then in effect, as such conversion rate may be
adjusted from time to time as provided in the Certificate of Amendment
(including the amount, if any, of accrued and unpaid dividends to the date of
such conversion provided for therein, to the extent provided in the Certificate
of Amendment), which notice shall be accompanied by a certificate from the
Company stating that such conversion of Preferred Stock is in accordance with
the provisions of the Certificate of Amendment. On the date of such conversion,
provided that the Company shall have issued and deposited with the Depositary
the Capital Securities or other debt securities into which the Preferred Stock
is to be converted (and paid in full to the Depositary any accrued and unpaid
dividends on the Preferred Stock to be converted, to the extent provided in the
Certificate of Amendment) on or prior to the date of such conversion, the
Depositary shall convert the Depositary Shares representing the Preferred Stock
into the Capital Securities or other debt securities issued in such conversion.
The Depositary shall mail, first-class postage prepaid, notice of the
<PAGE>
8
conversion of Preferred Stock and the proposed simultaneous conversion of the
Depositary Shares representing the Preferred Stock to be converted, not less
than 30 nor more than 60 days prior to the date fixed for conversion of such
Preferred Stock and Depositary Shares (the "Conversion Date"), to the Holders on
---------------
the record date fixed for such conversion, pursuant to Section 4.04 hereof, of
the Receipts evidencing the Depositary Shares to be so converted, at the
addresses of such Holders as the same appear on the records of the Depositary;
but neither failure to mail any such notice to one or more such Holders nor any
defect in any notice shall affect the sufficiency of the conversion as to other
Holders. The Company shall provide the Depositary with such notice, and each
such notice shall state: (i) the record date for the purposes of such
conversion; (ii) the Conversion Date; (iii) the securities into which the
Preferred Stock is to be converted; (iv) the number of Depositary Shares to be
converted; (v) if fewer than all the Depositary Shares held by any Holder are to
be converted, the number of such Depositary Shares held by such Holder to be so
converted; (vi) the place or places where Receipts evidencing Depositary Shares
to be converted are to be surrendered for conversion; (vii) in the event that
the Depositary Shares evidence Preferred Stock redeemable or convertible into
Common Shares or any other class or series of Capital Securities at the option
of the holder of the Preferred Stock, unless otherwise specified in the
Certificate of Amendment, that all such redemption or conversion rights in
respect of such Preferred Stock will terminate at the close of business on such
Conversion Date; and (viii) that, from and after the Conversion Date, unless
otherwise specified in the Certificate of Amendment, dividends in respect of the
Preferred Stock represented by the Depositary Shares to be converted will cease
to accrue and all other rights with respect to such Depositary Shares (except
the right to receive the Capital Securities or other debt securities delivered
upon conversion of the Depositary Shares and, to the extent provided in the
Certificate of Amendment, any accrued and unpaid dividends on the Preferred
Stock represented by such Depositary Shares) will, to the extent of such
Depositary Shares, cease and terminate. If fewer than all the outstanding
Depositary Shares are to be converted, the Depositary Shares to be converted
shall be selected by the Depositary by lot or pro rata (subject to rounding to
avoid fractions of the Depositary Shares) or in any other equitable manner, in
each case as may be determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from and
after the Conversion Date (unless default shall be made by the Company in
issuing and depositing with the Depositary the Capital Securities or other debt
securities to be issued upon conversion of, or in making payment of all accrued
and unpaid dividends on, the outstanding shares of Preferred Stock subject to
conversion on the Conversion Date), unless otherwise specified in the
Certificate of Amendment, (i) all dividends in respect of the shares of
Preferred Stock called for conversion shall cease to accrue; (ii) in the event
that the Depositary Shares evidence Preferred Stock redeemable or convertible
into Common Shares or any other class or series of Capital Securities at the
option of the holder of the Preferred Stock, such redemption or conversion
rights in respect of such Preferred Stock shall terminate at the close of
business on such Conversion Date; (iii) the Depositary Shares called for
conversion shall be deemed no longer to be outstanding; and (iv) all other
rights of the Holders of Receipts evidencing such Depositary Shares (except the
right to receive the
<PAGE>
9
Capital Securities or other debt securities delivered upon conversion of the
Depositary Shares and, to the extent provided in the Certificate of Amendment,
any accrued and unpaid dividends on the Preferred Stock represented by such
Depositary Shares) shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
if the Company or the Depositary shall so require and the notice shall so
state), such Depositary Shares shall be accepted in conversion for such Capital
Securities or other debt securities at a conversion rate per Depositary Share
equal to [specify fraction] of the conversion rate per share then in effect in
respect of the shares of deposited Preferred Stock so converted, as such
conversion rate may be adjusted from time to time as provided in the Certificate
of Amendment, plus any other money and other property, if any, represented by
each such Depositary Share, including all amounts paid by the Company in respect
of dividends which on the Conversion Date have accumulated or accrued on the
shares of Preferred Stock to be so converted and have not theretofore been paid.
The foregoing shall be further subject to the terms and conditions of the
Certificate of Amendment.
If fewer than all of the Depositary Shares evidenced by a Receipt of a
Holder are to be converted, the Depositary will deliver to such Holder of such
Receipt upon its surrender to the Depositary, together with the Capital
Securities or other debt securities and any other money and other property
delivered upon conversion of the Depositary Shares so converted, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for conversion.
The Depositary shall not be required (a) to issue, transfer, or
exchange any Receipts for a period beginning at the opening of business 15 days
next preceding any selection of Depositary Shares and Preferred Stock to be
converted and ending at the close of business on the day of the mailing of
notice of conversion of Depositary Shares or (b) to transfer or exchange for
another Receipt any Receipt evidencing Depositary Shares called or being called
for conversion in whole or in part, except as provided in the preceding
paragraph of this Section 2.04.
No fractional shares of Capital Securities shall be issuable upon
conversion of Preferred Stock underlying the Depositary Shares. If, except for
the provisions of this Section 2.04 and the Certificate of Amendment, any Holder
of Receipts surrendered to the Depositary for conversion of the underlying
Preferred Stock would be entitled to a fractional share of such Capital
Securities upon such conversion, the Company shall cause to be delivered to such
Holder an amount in cash for such fractional share determined in accordance with
the Certificate of Amendment.
SECTION 2.05. Registration of Transfer of Receipts. Subject to the
------------------------------------
terms and conditions of this Deposit Agreement, the Depositary shall from time
to time register on its books maintained for such purpose transfers of Receipts
upon any surrender thereof by the Holder in person or by a duly authorized
attorney, properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement, together with evidence of the
<PAGE>
10
payment of any transfer taxes and other governmental charges as may be required
by law. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered.
SECTION 2.06. Combinations and Split-ups of Receipts. Upon surrender
--------------------------------------
by a Holder of a Receipt or Receipts at the Corporate Office or such other
office as the Depositary may designate for the purpose of effecting a split-up
or combination of such Receipt or Receipts, and subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute and deliver a
new Receipt or Receipts in the authorized denomination or denominations
requested evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered; provided, however, that the Depositary
-------- -------
shall not issue any Receipt evidencing a fractional Depositary Share.
SECTION 2.07. Surrender of Receipts and Withdrawal of Preferred
-------------------------------------------------
Stock. Any Holder of a Receipt or Receipts may withdraw any or all of the
number of whole shares of the Preferred Stock represented by the Depositary
Shares evidenced by such Receipts and all money and other property, if any,
represented by such Depositary Shares by surrendering such Receipt or Receipts
at the Corporate Office or at such other office as the Depositary may designate
for such withdrawals; provided, however, that a Holder may not withdraw
-------- -------
Preferred Stock (or money and other property, if any, represented thereby) which
has previously been called by the Company for redemption or conversion.
Thereafter, without unreasonable delay, the Depositary shall deliver to such
Holder, or to the person or persons designated by such Holder as hereinafter
provided, the number of whole shares of Preferred Stock and all such money and
other property, if any, represented by the Depositary Shares evidenced by the
Receipt or Receipts so surrendered for purposes of withdrawal, but holders of
such whole shares of Preferred Stock will not thereafter be entitled to deposit
such Preferred Stock hereunder or to receive Depositary Shares therefor. If the
Receipt or Receipts delivered by the Holder to the Depositary in connection with
such withdrawal shall evidence a number of Depositary Shares in excess of the
number of whole Depositary Shares representing the number of whole shares of
deposited Preferred Stock to be withdrawn, the Depositary shall at the same
time, in addition to such number of whole shares of deposited Preferred Stock
and such money and other property, if any, to be withdrawn, deliver to such
Holder, or (subject to Sections 2.05 and 2.06) upon his or her order, a new
Receipt or Receipts evidencing such excess number of whole Depositary Shares.
In no event will fractional shares of Preferred Stock or Receipts evidencing
fractional Depositary Shares be distributed or issued by the Depositary.
Delivery of the Preferred Stock and such money and other property being
withdrawn may be made by the delivery of such certificates, documents of title,
and other instruments as the Depositary may deem appropriate, which, if required
by the Depositary, shall be properly endorsed or accompanied by proper
instruments of transfer.
If the Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the Holder of
the Receipt or Receipts being surrendered for withdrawal of Preferred Stock,
such Holder shall execute and deliver to the
<PAGE>
11
Depositary a written order so directing the Depositary, and the Depositary may
require that the Receipt or Receipts surrendered by such Holder for withdrawal
of such shares of Preferred Stock be properly endorsed in blank or accompanied
by a properly executed instrument of transfer or endorsement in blank; provided,
--------
however, that the Holder of such Receipt shall pay the amount of any tax or
- -------
other governmental charge due (only if such tax would not be payable if the
Preferred Stock were to be delivered to the Holder) but otherwise the Company
shall pay any such tax or other governmental charge due.
The Depositary shall deliver the Preferred Stock and the money and
other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the Corporate Office, except that, at the
request, risk, and expense of the Holder surrendering such Receipt or Receipts
and for the account of the Holder thereof, such delivery may be made at such
other place as may be designated by such Holder.
SECTION 2.08. Limitations on Execution and Delivery, Transfer, Split-
------------------------------------------------------
up, Combination, Surrender, and Exchange of Receipts. As a condition precedent
- ----------------------------------------------------
to the execution and delivery, transfer, split-up, combination, surrender for
purposes of withdrawal, or exchange of any Receipt at the request of a Holder
or, in the event that the Depositary Shares evidence Preferred Stock convertible
at the option of the holder thereof into Common Shares or other Capital
Securities of the Company, to the exercise by any Holder of any such conversion
right referred to in Section 2.11, the Depositary, any Agent or the Company may
require any or all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company shall have made
such payment, the reimbursement) of any tax or other governmental charge with
respect thereto (including any such tax or charge with respect to the Preferred
Stock being deposited or withdrawn, provided, however, that, in the event that
-------- -------
the Depositary Shares evidence Preferred Stock convertible into Common Shares or
other Capital Securities of the Company, the Company shall pay any documentary,
stamp, or similar issue or transfer tax or other governmental charge due on the
issuance of Common Shares or other Capital Securities upon such conversion; and
provided further that the Holder of such Receipt shall pay the amount of any tax
- -------- -------
or other governmental charge due if such Common Shares or such other Capital
Securities are to be issued in a name other than that of such Holder (only if
such tax would not be payable if the Preferred were to be delivered to the
Holder) but otherwise the Company shall pay any such tax or other governmental
charge due); (ii) the production of proof satisfactory to it as to the identity
and genuineness of any signature (or the authority of any signature); and (iii)
compliance with such regulations, if any, as the Depositary or the Company may
establish consistent with the provisions of this Deposit Agreement.
The deposit of Preferred Stock may be refused, the delivery of
Receipts against Preferred Stock may be suspended, the transfer of Receipts may
be refused, the transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended and, in the event that the Depositary
Shares evidence Preferred Stock redeemable or convertible into Common Shares or
other Capital Securities of the Company at the option of the holder of the
Preferred Stock, the exercise of any such redemption or conversion right
<PAGE>
12
referred to in Section 2.12 or Section 2.11, as the case may be, may be
suspended (i) during any period when the register of holders of the Preferred
Stock is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any Agent, or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any shares of Preferred Stock that are not,
but are required to be, registered under the Securities Act and the Company
shall deliver to the Depositary written notice that, at the time of deposit, a
registration statement under the Securities Act is in effect as to such shares
of Preferred Stock.
SECTION 2.09. Lost Receipts, etc. In case any Receipt shall be
------------------
mutilated or destroyed or lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost, or stolen Receipt, provided that the Holder thereof
--------
provides the Depositary with (i) evidence satisfactory to the Depositary of such
destruction, loss, or theft of such Receipt, of the authenticity and of his
ownership thereof and (ii) reasonable indemnification satisfactory to the
Depositary and the Company.
SECTION 2.10. Cancellation and Destruction of Surrendered Receipts.
----------------------------------------------------
All Receipts surrendered to the Depositary or any Agent shall be cancelled by
the Depositary. Except as prohibited by applicable law or regulation, the
Depositary is authorized to destroy such cancelled Receipts.
SECTION 2.11. Conversion of Preferred Stock at the Option of the
--------------------------------------------------
Holder. It is understood and agreed that the Depositary Shares are not
- ------
convertible at the option of the Holder into Common Shares or any other
securities or property of the Company. Nevertheless, as a matter of
convenience, in the event that the Depositary Shares evidence Preferred Stock
convertible at the option of the holder thereof into Common Shares or other
Capital Securities of the Company, the Company hereby agrees to cause the
Depositary to accept (or to cause its Agent to accept), and the Depositary
hereby agrees to accept (or to cause its Agent to accept), the delivery of
Receipts for the purpose of effecting conversions of the Preferred Stock
utilizing the same procedures as those provided for delivery of Preferred Stock
certificates to effect such conversions in accordance with the terms and
conditions of the Certificate of Amendment; provided, however, that only whole
-------- -------
Depositary Shares may be so submitted for conversion.
Receipts may be surrendered with written instructions to the
Depositary to instruct the Company to cause, on the applicable conversion date,
the conversion of any specified number of whole or fractional shares of
Preferred Stock, convertible into Common Shares or other Capital Securities of
the Company, represented by the Depositary Shares evidenced by such Receipts,
into the number of whole Common Shares or whole number of shares of other
Capital Securities of the Company as are issuable, as provided in the
Certificate of Amendment, upon conversion of such shares of the Preferred Stock
at the
<PAGE>
13
conversion rate (as such term is defined in the Certificate of Amendment) then
in effect, as such conversion rate may be adjusted by the Company from time to
time as provided in the Certificate of Amendment. Subject to the terms and
conditions of this Deposit Agreement and the Certificate of Amendment, a Holder
of a Receipt or Receipts evidencing Depositary Shares representing whole or
fractional shares of Preferred Stock may surrender such Receipt or Receipts to
the Depositary at the Corporate Office or to such Agent as the Depositary may
designate for such purpose, together with a notice of conversion thereof duly
completed and executed (a "Notice of Conversion"), and any payment in respect of
------ -- ----------
dividends required by the fifth paragraph of this Section 2.11, thereby
directing the Depositary to instruct the Company to cause the conversion of the
number of shares or fractions thereof of underlying Preferred Stock specified in
such Notice of Conversion into whole Common Shares or a whole number of shares
of other Capital Securities of the Company. In the event that a Holder delivers
to the Depositary for conversion a Receipt or Receipts which in the aggregate
are convertible into (i) less than one whole Common Share or any number of whole
Common Shares plus an excess constituting less than one whole Common Share or
(ii) less than one whole share of such other Capital Securities or any whole
number of shares of such other Capital Securities plus an excess constituting
less than one whole share of such other Capital Securities, except as otherwise
provided in the Certificate of Amendment, the Holder shall receive payment in
lieu of such fractional Common Shares or fractional number of shares of such
other Capital Securities otherwise issuable in accordance with the last
paragraph of this Section 2.11. If more than one Receipt shall be delivered for
conversion at one time by the same Holder, the number of whole Common Shares or
the whole number of such other Capital Securities issuable upon conversion
thereof, as the case may be, shall be computed on the basis of the aggregate
number of Receipts so delivered.
Upon receipt by the Depositary of one or more Receipts, together with
a duly completed and executed Notice of Conversion, the Depositary shall, on the
date of receipt of such Notice of Conversion, instruct the Company (i) to cause
the conversion of the Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the Notice of Conversion and (ii) to cause the
delivery to the Holder or Holders of such Receipts of a certificate or
certificates evidencing the number of whole Common Shares or the whole number of
shares of such other Capital Securities and the amount of money, if any, to be
delivered to the Holders of Receipts surrendered for conversion in payment of
any fractional Common Shares or of any fractional number of shares of such other
Capital Securities otherwise issuable, as the case may be, in accordance with
the Certificate of Amendment. The Company shall, as promptly as practicable
after receipt thereof, cause the delivery to such Holder or Holders of (i) a
certificate or certificates evidencing the number of whole Common Shares or the
whole number of shares of such other Capital Securities into or for which the
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
or Receipts has been converted and (ii) any money or other property to which the
Holder or Holders are entitled, in accordance with the Certificate of Amendment.
The person or persons in whose name or names any certificate or certificates for
Common Shares or for shares of such other Capital Securities shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the Common Shares or the shares
<PAGE>
14
of other Capital Securities represented thereby at the close of business on the
date such Receipt or Receipts shall have been surrendered to and a Notice of
Conversion received by the Depositary, unless the stock transfer books of the
Company shall be closed on that date, in which event such person or persons
shall be deemed to have become such holder or holders of record on the next
succeeding day on which such stock transfer books are open. Upon such
conversion, the Depositary (i) shall deliver to the Holder a new Receipt
evidencing the number of Depositary Shares, if any, which such Holder has
elected not to convert in excess of the number of Depositary Shares representing
Preferred Stock which has been so converted, (ii) shall cancel the Depositary
Shares evidenced by Receipts surrendered for conversion, and (iii) shall deliver
for cancellation to the transfer agent for the Preferred Stock the shares of
Preferred Stock represented by the Depositary Shares evidenced by the Receipts
so surrendered and so converted, as the case may be.
If any Preferred Stock which is convertible at the option of the
holder thereof into Common Shares or other Capital Securities of the Company
shall be called by the Company for redemption or conversion at the option of the
Company pursuant to Section 2.03 or Section 2.04, as the case may be, the
Depositary Shares representing such Preferred Stock may be converted into
Common Shares or other Capital Securities at the option of the holder, unless
otherwise specified in the Certificate of Amendment, as provided above until and
including, but not after, the close of business on the Redemption Date or
Conversion Date, as the case may be, unless the Company shall default in making
payment of the redemption price or issuing the Common Shares or shares of other
Capital Securities or making the final dividend payments thereon, as the case
may be. Upon receipt by the Depositary of a Receipt or Receipts representing
any Preferred Stock called for redemption or conversion at the option of the
Company pursuant to Section 2.03 or Section 2.04, as the case may be, together
with a properly completed and executed Notice of Conversion, the shares of
Preferred Stock held by the Depositary represented by such Depositary Shares as
to which conversion is requested pursuant to this Section 2.11 shall be deemed
to have been received by the Company to effect such conversion.
Upon any conversion of the Preferred Stock underlying the Depositary
Shares at the option of the Holder of the Receipts evidencing such Depositary
Shares, to the extent provided in the Certificate of Amendment, no allowance,
adjustment, or payment shall be made with respect to accrued dividends upon such
Preferred Stock, except that if any Holder of a Receipt surrenders such Receipt
with instructions to the Depositary for conversion of the underlying Preferred
Stock evidenced thereby during the period between the opening of business on any
dividend record date and the close of business on the corresponding dividend
payment date (except shares then called for redemption or conversion at the
option of the Company pursuant to Section 2.03 or Section 2.04, as the case may
be), such Receipt must be accompanied by a payment equal to the dividend
thereon, if any, which the Holder of such Receipt is entitled to receive on such
dividend payment date in respect of the underlying Preferred Stock to be
converted.
<PAGE>
15
Upon the conversion of any shares of Preferred Stock for which a duly
completed and executed Notice of Conversion has been received by the Depositary,
unless otherwise specified in the Certificate of Amendment, all dividends in
respect of such Depositary Shares shall cease to accrue, such Depositary Shares
shall be deemed no longer outstanding, all rights of the Holder of the Receipt
with respect to such Depositary Shares (except the right to receive the Common
Shares or other Capital Securities of the Company, any cash payable with respect
to any fractional Common Shares or fractional number of shares of such other
Capital Securities, as the case may be, as provided herein and any cash payable
on account of accrued dividends in respect of the Preferred Stock so converted
and any Receipts evidencing Depositary Shares not so converted) shall terminate,
and the Receipt evidencing such Depositary Shares shall be cancelled in
accordance with Section 2.10 hereof.
No fractional Common Shares or fractional number of shares of other
Capital Securities, as the case may be, shall be issuable upon conversion of
Preferred Stock underlying the Depositary Shares. If, except for the provisions
of this Section 2.11 and the Certificate of Amendment, any Holder of Receipts
surrendered to the Depositary for conversion of the underlying Preferred Stock
would be entitled to a fractional share of such Common Share or a fractional
share of such other Capital Securities, as the case may be, upon such
conversion, the Company shall cause to be delivered to such Holder an amount in
cash for such fractional share determined in accordance with the Certificate of
Amendment.
If the the Common Shares and shares of other Capital Securities, any
money and other property and any new Receipts deliverable upon conversion are to
be delivered to a person or persons other than the Holder of the Receipt or
Receipts being delivered for conversion of Preferred Stock, such Holder shall
execute and deliver to the Depositary a written order (which may be included in
the Notice of Conversion) so directing the Depositary, and the Depositary may
require that the Receipt or Receipts delivered by such Holder for conversion of
such shares of Preferred Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer or endorsement in blank; provided,
--------
however, that the Holder of such Receipt shall pay the amount of any tax or
- -------
other governmental charge due (only if such tax would not be payable if the
Preferred Stock were to be delivered to the Holder) but otherwise the Company
shall pay any such tax or other governmental charge due.
SECTION 2.12. Redemption of Preferred Stock at the Option of the
--------------------------------------------------
Holder. It is understood and agreed that the Depositary Shares are not
- ------
redeemable at the option of the Holder. Nevertheless, as a matter of
convenience, in the event that the Depositary Shares evidence Preferred Stock
redeemable at the option of the holder thereof, as set forth in the Certificate
of Amendment, the Company hereby agrees to cause the Depositary to accept (or to
cause its Agent to accept) and the Depositary hereby agrees to accept (or to
cause its Agent to accept) the delivery of Receipts for the purpose of effecting
redemptions of the Preferred Stock utilizing the same procedures as those
provided for delivery of Preferred Stock certificates to effect such redemptions
in accordance with the terms and conditions of
<PAGE>
16
the Certificate of Amendment; provided, however, that only whole Depositary
-------- -------
Shares may be so submitted for redemption.
Receipts may be surrendered with written instructions to the
Depositary to instruct the Company to cause, on the applicable redemption date,
the redemption of any specified number of whole or fractional shares of
redeemable Preferred Stock represented by the Depositary Shares evidenced by
such Receipts at the redemption price per Depositary Share equal to the
applicable fraction of the redemption price per share paid in respect of the
shares of the deposited Preferred Stock so redeemed, plus any other money and
other property, if any, represented by each such Depositary Share, including, to
the extent provided in the Certificate of Amendment, an amount equal to any
accumulated or accrued and unpaid dividends thereon to the date of such
redemption. Subject to the terms and conditions of this Deposit Agreement and
the Certificate of Amendment, a Holder of a Receipt or Receipts evidencing
Depositary Shares representing whole or fractional shares of Preferred Stock may
surrender such Receipt or Receipts to the Depositary at the Corporate Office or
to such Agent as the Depositary may designate for such purpose, together with a
notice of redemption thereof duly completed and executed (a "Notice of
------ --
Redemption") and any payment in respect of dividends required by the fifth
- ----------
paragraph of this Section 2.12, thereby directing the Depositary to instruct the
Company to cause the redemption of the number of shares or fractions thereof of
underlying Preferred Stock specified in such Notice of Redemption. If more than
one Receipt shall be delivered for redemption at one time by the same Holder,
the amount of money payable upon redemption thereof shall be computed on the
basis of the aggregate number of Receipts so delivered.
Upon receipt by the Depositary of one or more Receipts, together with
a duly completed and executed Notice of Redemption, the Depositary shall, on the
date of receipt of such Notice of Redemption, instruct the Company (i) to cause
the redemption of the Depositary Shares evidenced by the Receipts so surrendered
for redemption as specified in the Notice of Redemption and (ii) to cause the
delivery to the Holder or Holders of such Receipts of the amount of money to be
delivered to the Holders of Receipts surrendered for redemption, in accordance
with the Certificate of Amendment. The Company shall, as promptly as
practicable after receipt thereof, cause the delivery to such Holder or Holders
of (i) the amount of money into or for which the Preferred Stock represented by
the Depositary Shares evidenced by such Receipt or Receipts has been redeemed
and (ii) any money or other property to which the Holder or Holders are
entitled, in accordance with the Certificate of Amendment. Upon such
redemption, the Depositary (i) shall deliver to the Holder a new Receipt
evidencing the number of Depositary Shares, if any, which such Holder has
elected not to redeem in excess of the number of Depositary Shares representing
Preferred Stock which has been so redeemed, (ii) shall cancel the Depositary
Shares evidenced by Receipts surrendered for redemption and (iii) shall deliver
for cancellation to the transfer agent for the Preferred Stock the shares of
Preferred Stock represented by the Depositary Shares evidenced by the Receipts
so surrendered and so redeemed, as the case may be.
<PAGE>
17
If any Preferred Stock which is redeemable at the option of the holder
thereof shall be called by the Company for redemption or conversion at the
option of the Company pursuant to Section 2.03 or Section 2.04, as the case may
be, the Depositary Shares representing such Preferred Stock may be redeemed at
the option of the holder, unless otherwise specified in the Certificate of
Amendment, as provided above until and including, but not after, the close of
business on the Redemption Date or Conversion Date, as the case may be, unless
the Company shall default in making payment of the redemption price or issuing
the Common Shares or shares of other Capital Securities or making the final
dividend payments thereon, as the case may be. Upon receipt by the Depositary
of a Receipt or Receipts representing any Preferred Stock called for redemption
or conversion at the option of the Company pursuant to Section 2.03 or Section
2.04, as the case may be, together with a properly completed and executed Notice
of Redemption, the shares of Preferred Stock held by the Depositary represented
by such Depositary Shares as to which redemption is requested pursuant to this
Section 2.12 shall be deemed to have been received by the Company to effect such
conversion.
Upon any redemption at the option of the holder of the Preferred Stock
underlying the Depositary Shares, to the extent provided in the Certificate of
Amendment, an allowance, adjustment, or payment shall be made with respect to
accrued dividends upon such Preferred Stock, and if any Holder of a Receipt
surrenders such Receipt with instructions to the Depositary for redemption of
the underlying Preferred Stock evidenced thereby during the period between the
opening of business on any dividend record date and the close of business on the
corresponding dividend payment date, if such Holder shall be entitled to receive
the dividend payable on such dividend payment date such Receipt must be
accompanied by a payment equal to the dividend to accrue thereon for the period
from such redemption date to such dividend payment date.
Upon the redemption of any shares of Preferred Stock for which a duly
completed and executed Notice of Redemption has been received by the Depositary,
unless otherwise specified in the Certificate of Amendment, all dividends in
respect of such Depositary Shares shall cease to accrue, such Depositary Shares
shall be deemed no longer outstanding, all rights of the Holder of the Receipt
with respect to such Depositary Shares (except the right to receive the amount
of money payable upon such redemption and any cash payable on account of accrued
dividends in respect of the Preferred Stock so redeemed and any Receipts
evidencing Depositary Shares not so redeemed) shall terminate, and the Receipt
evidencing such Depositary Shares shall be cancelled in accordance with Section
2.10 hereof.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates, and Other Information.
--------------------------------------------------
Any Holder may be required from time to time to file such proof of residence or
other
<PAGE>
18
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery,
registration of transfer, or exchange of any Receipt, the withdrawal of the
Preferred Stock represented by the Depositary Shares evidenced by any Receipt,
the distribution of any dividend or other distribution, the sale of any rights
or of the proceeds thereof, the payment of the redemption price upon redemption
in accordance with Section 2.03, the delivery of Capital Securities or other
debt securities upon conversion in accordance with Section 2.04, the exercise of
any conversion right referred to in Section 2.11 hereof or the delivery of any
Common Shares or other Capital Securities of the Company upon such conversion,
the exercise of any redemption right referred to in Section 2.12 or the payment
of the redemption price upon such redemption until such proof or other
information is filed, such certificates are executed or such representations and
warranties are made.
SECTION 3.02. Payment of Fees and Expenses. Holders of Receipts
----------------------------
shall be obligated to make payments to the Depositary of certain fees and
expenses in respect of requested duties not required to be performed under this
Deposit Agreement, as provided in Section 5.07, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid.
Until such payment is made, transfer of any Receipt or any withdrawal of the
Preferred Stock or money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused, any dividends,
interest payments, or other distribution may be withheld, any conversion or
redemption right may be refused and any part or all of the Preferred Stock or
other property represented by the Depositary Shares evidenced by such Receipt
may be sold for the account of the Holder thereof (after attempting by
reasonable means to obtain such payment prior to such sale); provided, however,
-------- -------
that notice of such sale shall be sent by the Depositary to such Holder. Any
dividends, interest payments, or other distribution so withheld and the proceeds
of any such sale may be applied to any payment of such fees or expenses, the
Holder of such Receipt remaining liable for any deficiency.
SECTION 3.03. Representations and Warranties as to Preferred Stock
----------------------------------------------------
and Depositary Shares. The Company hereby represents and warrants that (i) the
- ---------------------
shares of Preferred Stock deposited hereunder have been duly authorized and,
when issued and deposited hereunder, will be validly issued, fully paid and
nonassessable, (ii) the Depositary Shares have been duly authorized and, when
the Receipts are executed by the Depositary or duly countersigned by an
authorized signatory of the Registrar as provided in Section 2.01, such
Depositary Shares will represent legal and valid interests in the Preferred
Stock deposited hereunder, and (iii) all corporate action required to be taken
for the authorization, issuance and delivery of such Preferred Stock and
Depositary Shares has been validly taken. Such representations and warranties
shall survive the deposit of the Preferred Stock and the issuance of Receipts.
SECTION 3.04. Covenants and Representation and Warranty as to Common
------------------------------------------------------
Shares and Other Capital Securities. In the event that the Depositary Shares
- -----------------------------------
evidence
<PAGE>
19
Preferred Stock convertible into Common Shares or other Capital Securities, the
Company covenants that it will give written notice to the Depositary of any
adjustments in the conversion price made pursuant to the Certificate of
Amendment and that it will at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Shares or other Capital Securities or shares held in its treasury or both, for
the purpose of effecting the conversion of the shares of such series of
Preferred Stock, the full number of shares of Common Shares or other Capital
Securities then deliverable upon the conversion of all outstanding shares of
such series. The Company hereby represents and warrants that the Common Shares
and other Capital Securities issuable upon conversion of the Preferred Stock,
when issued, will be duly authorized, validly issued, fully paid, and
nonassessable. Such representation and warranty shall survive the conversion of
the Preferred Stock into such Common Shares and other Capital Securities.
SECTION 3.05. Representation and Warranty as to Debt Securities. The
-------------------------------------------------
Company hereby represents and warrants that the debt securities issuable upon
conversion of the Preferred Stock, when issued, will be duly authorized and
constitute legal, valid, and binding obligations of the Company in accordance
with their terms and the applicable indenture, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, or other similar laws now
or hereinafter in effect affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law). Such representation and warranty shall survive the conversion of the
Preferred Stock into such debt securities.
ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
------------------
receive any cash dividend or other cash distribution on the deposited Preferred
Stock, the Depositary shall, subject to Article II and to Sections 3.01 and
3.02, distribute to Holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such Holders; provided, however, that in case the Company or
-------- -------
the Depositary shall withhold from any cash dividend or other cash distribution
in respect of the Preferred Stock represented by the Receipts held by any Holder
an amount on account of taxes or as otherwise required by law, regulation or
court order, the amount made available for distribution or distributed in
respect of Depositary Shares represented by such Receipts subject to such
withholding shall be reduced accordingly. The Depositary shall distribute or
make available for distribution, as the case may be, only such amount, however,
as can be distributed without attributing to any Holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest
<PAGE>
20
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to Holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash. Whenever the Depositary
-----------------------------
shall receive any distribution other than cash on the deposited Preferred Stock,
the Depositary shall, subject to Article II and to Sections 3.01 and 3.02,
distribute to Holders of Receipts on the record date fixed pursuant to Section
4.04 such amounts of the securities or property received by it as are, as nearly
as practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such Holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Depositary after consultation with
the Company, such distribution cannot be made proportionately among such
Holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes or as otherwise
required by law, regulation, or court order), the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the public or private sale of the securities or property thus
received, or any part thereof, at such place or places and upon such terms as it
may deem proper. The net proceeds of any such sale shall be distributed or made
available for distribution, as the case may be, by the Depositary to Holders of
Receipts as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of such securities or
property to the Holders of Receipts unless the Company shall have provided to
the Depositary an opinion of counsel stating that such securities or property
have been registered under the Securities Act or do not need to be registered.
SECTION 4.03. Subscription Rights, Preferences, or Privileges. If
-----------------------------------------------
the Company shall at any time offer or cause to be offered to the persons in
whose names Preferred Stock is registered on the books of the Company any
rights, preferences, or privileges to subscribe for or to purchase any
securities or any rights, preferences, or privileges of any other nature, such
rights, preferences, or privileges shall, if the Company so directs, in each
such instance be made available by the Depositary to the Holders in such manner
as the Company shall instruct (including by the issue to such Holders of
warrants representing such rights, preferences or privileges); provided,
--------
however, that (a) if at the time of the issuance or offering of any such rights,
- -------
preferences, or privileges the Company determines that it is not lawful or
feasible to make such rights, preferences or privileges available to some or all
Holders of Receipts (by the issue of warrants or otherwise) or (b) if and to the
extent instructed by Holders who do not desire to exercise such rights,
preferences or privileges, the Depositary shall, if so instructed by the
Company, and if applicable laws or the terms of such rights, preferences or
privileges so permit, sell such rights, preferences, or privileges of such
Holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.01 and 3.02, be distributed by the Depositary as provided by Section
4.01 in the case of a distribution received in cash to such Holders of Receipts
as are entitled thereto. The
<PAGE>
21
Company shall not make any distribution of such rights, preferences, or
privileges, unless the Company shall have provided to the Depositary an opinion
of counsel stating that such rights, preferences, or privileges have been
registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of any securities to which
any rights, preferences, or privileges relate is required in order for Holders
to be offered or sold the securities to which such rights, preferences or
privileges relate, the Company agrees that it will promptly file a registration
statement pursuant to the Securities Act with respect to such rights,
preferences or privileges and securities and use all reasonable efforts to cause
such registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such Holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the Holders of Receipts any right, preference, or
privilege to subscribe for or to purchase any securities unless and until such a
registration statement shall have become effective or unless the offering and
sale of such securities to such Holders are exempt from registration under the
provisions of the Securities Act, and the Company shall have provided to the
Depositary an opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent, or permit is required in
order for such rights, preferences, or privileges to be made available to
Holders, the Company agrees to use all reasonable efforts to take such action or
obtain such authorization, consent, or permit sufficiently in advance of the
expiration of such rights, preferences, or privileges to enable such Holders to
exercise such rights, preferences, or privileges.
SECTION 4.04. Notice of Dividends; Fixing of Record Date for Holders
------------------------------------------------------
of Receipts. Whenever any cash dividend or other cash distribution shall become
- -----------
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
Preferred Stock, or whenever the Depositary shall receive notice of (i) any
meeting at which holders of Preferred Stock are entitled to vote or of which
they are entitled to notice or (ii) any election on the part of the Company but
not a Holder to redeem or convert any shares of Preferred Stock, the Depositary
shall in each such instance fix a record date (which shall be the same date as
the record date fixed by the Company with respect to the Preferred Stock) for
the determination of the Holders who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
of such rights, preferences or privileges, to give instructions for the exercise
of voting rights at any such meeting or to receive notice of such meeting, or
whose Depositary Shares are to be so redeemed or converted.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
-------------
at which the holders of Preferred Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the Holders of Receipts a
notice, which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of
<PAGE>
22
meeting, (ii) a statement that the Holders of Receipts at the close of business
on a specified record date fixed pursuant to Section 4.04 will be entitled,
subject to any applicable provision of law, the Articles of Incorporation or the
Certificate of Amendment, to instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Preferred Stock represented by their
respective Depositary Shares (including an express indication that instructions
may be given to the Depositary to give a discretionary proxy to a person
designated by the Company) and (iii) a brief statement as to the manner in which
such instructions may be given. Upon the written request of a Holder of a
Receipt on such record date, the Depositary shall, to the extent practicable,
vote or cause to be voted the amount of Preferred Stock represented by the
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Preferred Stock or cause such Preferred Stock to be
voted. In the absence of specific instructions from the Holder of a Receipt,
the Depositary will abstain from voting to the extent of the Preferred Stock
represented by the Depositary Shares evidenced by such Receipt. The Depositary
shall not be required to exercise discretion in voting any Preferred Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Preferred Stock and
-------------------------------------
Reclassifications, Recapitalizations, etc. Upon any change in the par value, or
- -----------------------------------------
upon any split-up, combination or any other reclassification, of the Preferred
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or the sale of all
or substantially all of the Company's assets, the Depositary shall, upon the
instructions of the Company, treat any shares of stock or other securities or
property (including cash) that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Preferred Stock as new deposited
property under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of Holders thereof in the new
deposited property so received in exchange for or upon conversion of or in
respect of such Preferred Stock. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
Anything to the contrary herein notwithstanding, Holders of Receipts shall have
the right from and after the effective date of any such change in par value, or
upon any such split-up, combination, or other reclassification, of the Preferred
Stock or any such recapitalization, reorganization, merger, amalgamation, or
consolidation affecting the Company, or sale of all or substantially all of the
Company's assets to surrender such Receipts to the Depositary with instructions
to convert or surrender the Preferred Stock represented thereby only into or
for, as the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Preferred Stock represented by
such Receipts might have been converted or for which such Preferred Stock might
have been exchanged or surrendered immediately prior to the effective date of
such transaction.
<PAGE>
23
SECTION 4.07. Inspection of Reports. The Depositary shall make
---------------------
available for inspection by Holders of Receipts at the Corporate Office and at
such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that are
both received by the Depositary as the holder of Preferred Stock and made
generally available to the holders of Preferred Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
------------------------
time to time by the Company, the Depositary shall furnish to the Company a list,
as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall be
-----------------------------
responsible for (i) preparation and mailing of form 1099s (or successor forms)
for all open and closed accounts, (ii) foreign tax withholding, (iii)
withholding of tax on dividends payable to eligible Holders of Receipts, (iv)
mailing W-9 forms (or successor forms) to new Holders of Receipts without a
certified taxpayer identification number, (v) processing certified W-9 forms (or
successor forms), (vi) preparation and filing of state information returns, and
(vii) escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of this
-----------
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax that the Depositary is obligated
to withhold, the Depositary may, after consultation with the Company, dispose of
all or a portion of such property in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes, by public or
private sale at such place or places and upon such terms as it shall deem proper
after consultation with the Company, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction of
such taxes to the Holders of Receipts entitled thereto in proportion to the
number of Depositary Shares held by them respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary and the Registrar. Upon execution of this Deposit Agreement in
- --------------------------------
accordance with its terms, the Depositary shall maintain at the Corporate Office
facilities for the execution and delivery, transfer, surrender and exchange,
split-up, combination, conversion and redemption of Receipts and deposit and
withdrawal of Preferred Stock and at the offices of any Agent, facilities for
the delivery, transfer, surrender and exchange, split-up, combination,
conversion and redemption of Receipts and deposit and withdrawal of Preferred
Stock, all in accordance with the provisions of this Deposit Agreement.
<PAGE>
24
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books shall be open at all
reasonable times for inspection by the Holders of Receipts, as provided by and
in accordance with the requirements of applicable law. The Depositary shall
consult with the Company upon receipt of any request for inspection. The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on any
stock exchange, and if required by any such stock exchange, the Depositary shall
appoint, at the expense of the Company, a Registrar (acceptable to the Company)
for registry of Receipts or Depositary Shares in accordance with the
requirements of such exchange. Such Registrar (which may be the Depositary if
so permitted by such exchange) may be removed, and a substitute registrar
appointed, by the Depositary upon the request or with the approval of the
Company.
[The Company hereby also appoints the Depositary as Registrar and
transfer agent in respect of the Receipts, and the Depositary hereby accepts
such appointments.]
SECTION 5.02. Prevention of or Delay in Performance by the
--------------------------------------------
Depositary, Any Agent, the Registrar, or the Company. Neither the Depositary,
- ----------------------------------------------------
any Agent, any Registrar nor the Company shall incur any liability to any Holder
of any Receipt, if by reason of any provision of any present or future law or
regulation thereunder of the United States of America or of any other
governmental authority, or by reason of any present or future provision of the
Articles of Incorporation or the Certificate of Amendment, or by reason of any
act of God or war or other circumstance beyond the control of the relevant
party, the Depositary, any Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing that the terms
of this Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Agent, any Registrar, or the Company incur any liability to any
Holder of a Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of this Deposit
Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this Deposit
Agreement except, in case of any such exercise or failure to exercise discretion
not caused as aforesaid, if caused by the gross negligence or willful misconduct
of the party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, Any Agent, the
---------------------------------------------
Registrar, and the Company. Neither the Depositary, any Agent, any Registrar
- --------------------------
nor the Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement or any Receipt to Holders of Receipts so long as
each of them acts in good faith in the performance of such duties as are
specifically set forth in this Deposit Agreement.
Neither the Depositary, any Agent, any Registrar nor the Company shall
be under any obligation to appear in, prosecute, or defend any action, suit, or
other proceeding
<PAGE>
25
with respect to deposited Preferred Stock, Depositary Shares, or Receipts that
in its opinion may subject it to expense or liability, unless indemnity
satisfactory to it against all such expense and liability be furnished.
To the fullest extent permitted by law, neither the Depositary, any
Agent, any Registrar nor the Company shall be liable for any action taken or any
failure to act in reliance upon the written advice of legal counsel, or the
written advice of or information provided by any accountant, any Holder of a
Receipt or any other person believed by it in good faith to be competent to give
such advice or information. The Depositary, any Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims,
requests, or instructions from any Holders of Receipts, on the one hand, and the
Company, on the other hand, the Depositary shall be entitled to act on such
claims, requests, or instructions received from the Company, and shall be
entitled to the full indemnification set forth in Section 5.06 hereof in
connection with any action so taken, except for any liability, costs or expenses
incurred by the Depository arising out of negligence or bad faith on its part.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the Preferred Stock or for the manner or effect
of any such vote, as long as any such action or non-action is in good faith and
does not result from negligence or willful misconduct of the Depositary. The
Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no covenants or obligations shall be implied against the
Depositary or any Registrar. The Depositary, its parents, affiliates, or
subsidiaries, any Agent, and any Registrar may own, buy, sell or deal in any
class of securities of the Company and its affiliates and in Receipts or
Depositary Shares or become pecuniarily interested in any transaction in which
the Company or its affiliates may be interested or contract with or lend money
to or otherwise act as fully or as freely as if it were not the Depositary, any
Agent, or the Registrar hereunder. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates or
act in any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Agent shall be
deemed to be an "issuer" of the securities under the federal securities laws or
applicable state securities laws, it being expressly understood and agreed that
the Depositary and any Agent are acting only in a ministerial capacity as
Depositary for the Preferred Stock; provided, however, that the Depositary
-------- -------
agrees to comply with all information reporting and withholding requirements
applicable to it under law or this Deposit Agreement in its capacity as
Depositary.
Neither the Depositary (or its officers, directors, employees, or
agents) nor any Agent makes any representation or has any responsibility as to
the validity of any
<PAGE>
26
registration statement pursuant to which the Depositary Shares are registered
under the Securities Act, the Preferred Stock, the Depositary Shares, the
Receipts (except as to the authenticity of its countersignature thereon) or any
instruments referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the Depositary is
-------- -------
responsible for its representations in this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
------------------------------------------------------
of Successor Depositary. The Depositary may at any time resign as Depositary
- -----------------------
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
the acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and the acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition a court of competent jurisdiction to appoint a successor depositary.
Every successor depositary shall execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall promptly execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Preferred Stock and any moneys or property held hereunder to such
successor and shall deliver to such successor a list of the Holders of all
outstanding Receipts and all records, books and other information relating
thereto. Any successor depositary shall promptly mail notice of its appointment
to the Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated, or converted shall be the successor Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
-----------------------------
it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the Holders of Receipts, in each case at the
address recorded in the Depositary's
<PAGE>
27
books, copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange upon which the
Preferred Stock, the Depositary Shares or the Receipts may be listed or by the
Articles of Incorporation and the Certificate of Amendment to be furnished by
the Company to holders of Preferred Stock. Such transmission will be at the
Company's expense, and the Company will provide the Depositary with such number
of copies of such documents as the Depositary may reasonably request. In
addition, the Depositary will transmit to the Holders of Receipts at the
Company's expense such other documents as may be requested by the Company.
SECTION 5.06. Indemnification by the Company. The Company agrees to
------------------------------
indemnify the Depositary, any Agent, and any Registrar against, and hold each of
them harmless from, any liability, costs, and expenses (including reasonable
attorneys' fees) that may arise out of, or in connection with, its acting as
Depositary, Agent, or Registrar, respectively, under this Deposit Agreement and
the Receipts, except for any liability arising out of negligence or bad faith on
the part of any such entity. The obligations of the Company set forth in this
Section 5.06 shall survive any succession of any Depositary, Registrar, or Agent
or termination of this Deposit Agreement.
SECTION 5.07. Taxes, Charges, Fees, and Expenses. The Company shall
----------------------------------
pay all transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. Other than payment of any tax or
other governmental charge due upon the issuance of Common Shares or other
securities of the Company issuable upon conversion of the Preferred Stock at the
option of the holder thereof pursuant to Section 2.11 or upon delivery of
Preferred Stock and the money and/or other property being withdrawn pursuant to
Section 2.07 to a person other than the Holder as specified in the Notice of
Conversion relating thereto or in the written order delivered to the Depositary
by the Holder, the Company will pay any and all issue and other taxes (other
than taxes based on gross or net income) and governmental charges that may be
payable in respect of any issue or delivery of Common Shares or other securities
of the Company on conversion or withdrawal of the Preferred Stock. The Company
will also pay any and all issue and other taxes (other than taxes based on gross
or net income) and governmental charges that may be payable in respect of any
issue or delivery of Common Shares or other securities of the Company on
conversion of the Preferred Stock at the option of the Company pursuant to
Section 2.04. All other transfer and other taxes and governmental charges shall
be at the expense of Holders of Depositary Shares.
The Company shall pay all charges of the Depositary in connection with
the initial deposit of the Preferred Stock and the initial issuance of the
Depositary Shares evidenced by the Receipts (including, without limitation,
temporary and definitive Receipts), any redemption or conversion of the
Preferred Stock at the option of the Company, any redemption or conversion of
the Preferred Stock at the option of Holders, and all withdrawals of Preferred
Stock by Holders. If a Holder of Receipts requests the Depositary to perform
duties not required under this Deposit Agreement, the Depositary shall notify
the Holder of the cost of such performance of such duties before performing such
duties, and
<PAGE>
28
such Holder will be liable for the charges and expenses related to such
performance. Except as otherwise provided herein, all other reasonable fees and
expenses of the Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, reasonable fees and expenses of counsel)
incident to the performance of their respective obligations hereunder will be
paid upon consultation and agreement between the Depositary and the Company as
to the amount and nature of such fees and expenses. The Depositary shall
present its statement for fees and expenses to the Company once every three
months or at such other intervals as the Company and the Depositary may agree.
The Depositary shall have no right to deduct from any distribution to be made to
the Holders any amount payable to the Depositary by the Company.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provision
---------
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment which
-------- -------
(i) shall materially and adversely alter the rights of the Holders of Receipts
(provided, however, that any change in the fees of any Depositary, Registrar, or
- --------- -------
transfer agent shall not be deemed to materially and adversely alter the rights
of such Holders) or (ii) would be materially and adversely inconsistent with the
rights granted to the holders of the Preferred Stock pursuant to the Certificate
of Amendment shall be effective unless such amendment shall have been approved
by the Holders of at least a majority of the Depositary Shares then outstanding.
Any amendment that shall impose any fees, taxes, or charges (other than fees and
charges provided for herein or in the Receipts), or that shall otherwise
prejudice any substantial existing right of Holders of Receipts, shall not
become effective as to Receipts until the expiration of 90 days after notice of
such amendment shall have been given to the Holders. Every Holder of a Receipt
at the time any such amendment becomes effective shall be deemed, by continuing
to hold such Receipt, to consent and agree to such amendment and to be bound by
this Deposit Agreement as amended thereby. In no event shall any amendment
impair the right of the Holder of any Receipt to surrender such Receipt and
receive the Preferred Stock therefor, subject to the terms hereof.
SECTION 6.02. Termination. This Deposit Agreement may be terminated
-----------
by the Company at any time upon not less than 60 days' prior written notice to
the Depositary, in which case, upon a date that is not later than 30 days after
the date of such notice, the Depositary shall deliver or make available for
delivery to each Holder, upon surrender of such Holder's Receipt or Receipts,
such number of whole shares of Preferred Stock represented by such Receipt or
Receipts. In the event that such Receipt or Receipts should represent a
fractional number of shares of Preferred Stock, the Depositary shall aggregate
all such interests in fractional shares of Preferred Stock and, with the
approval of the Company,
<PAGE>
29
adopt such method as it deems equitable and practicable for the purpose of
effecting the distribution of such interests, including the public or private
sale of the whole number of shares of Preferred Stock so aggregated, or any part
thereof, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall be distributed or made available for
distribution, as the case may be, by the Depositary to Holders of such Receipts
evidencing an interest in fractional shares of Preferred Stock. If a Holder
shall not have so surrendered such Holder's Receipt or Receipts in exchange for
whole shares of Preferred Stock on or prior to the effective date of termination
of this Deposit Agreement, such Holder shall for all purposes, including the
payment of dividends, be deemed to be a Holder of the appropriate number of
Depositary Shares previously represented by such Receipt or Receipts and shall
thereafter surrender to the Company such Receipt or Receipts in exchange for
whole shares of Preferred Stock. In the event that such Receipt or Receipts
should represent an interest in fractional shares of Preferred Stock, the
Company shall aggregate all such interests in fractional shares of Preferred
Stock and adopt such method as it deems equitable and practicable for the
purpose of effecting the distribution of such interest, including the public or
private sale of the whole number of shares of Preferred Stock so aggregated, or
any part thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall be distributed by the Company
to Holders of such Receipts evidencing an interest in fractional shares of
Preferred Stock. Upon termination of this Deposit Agreement, the Depositary
shall surrender to the Company any shares of Preferred Stock held by the
Depositary and the Company shall hold such Preferred Stock for the benefit of
the Holder of Receipts which previously represented such Preferred Stock.
This Agreement shall automatically terminate after (i) all outstanding
Depositary Shares shall have been redeemed pursuant to Section 2.03 or 2.12 or
withdrawn pursuant to Section 2.06, (ii) in the event that the Depositary Shares
represent Preferred Stock convertible into Common Shares, other Capital
Securities or debt securities of the Company, each share of Preferred Stock
shall have been converted into Common Shares, other Capital Securities or debt
securities of the Company pursuant to Section 2.04 or 2.11 or (iii) there shall
have been made a final distribution in respect of the Preferred Stock in
connection with any liquidation, dissolution, or winding up of the Company and
such distribution shall have been distributed to the Holders of Receipts
pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
<PAGE>
30
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
------------
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument. Delivery of an executed counterpart of
a signature page to this Deposit Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection during business hours at the
Corporate Office and the respective offices of the Depositary's Agents, if any,
by any Holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit Agreement
-----------------------------
is for the exclusive benefit of the parties hereto, including Holders of the
Receipts, any Agent and Registrar, and their respective successors hereunder,
and shall not be deemed to give any legal or equitable right, remedy or claim to
any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of
------------------------
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal, or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced, or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
-------
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram,
facsimile transmission, or other electronic means of communication confirmed by
letter, addressed to the Company at:
KeyCorp
127 Public Square
Cleveland, Ohio 44114-1306
Attention: Treasurer (with a copy to Secretary)
Telephone No.: 216/689-3000
Facsimile No.: 216/689-5681
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram, facsimile transmission or
other electronic means of communication confirmed by letter, addressed to the
Depositary at the Corporate Office.
<PAGE>
31
Any notices given to any Holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram, facsimile transmission or
other electronic means of communication, addressed to such Holder at the address
of such Holder as it appears on the books of the Depositary or, if such Holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such Holder be mailed to some other address, at the address
designated in such request.
SECTION 7.05. Holders of Receipts Are Parties. The Holders of
-------------------------------
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.06. Governing Law. This Deposit Agreement and the Receipts
-------------
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the law of the State of Ohio
applicable to contracts made and to be performed entirely within such State.
SECTION 7.07. Inspection of Deposit Agreement and Certificate of
--------------------------------------------------
Amendment. Copies of this Deposit Agreement and the Certificate of Amendment
- ---------
shall be filed with the Depositary and any Agent and shall be open to inspection
by any Holder of a Receipt during business hours at the Corporate Office and the
respective offices of any Agent.
SECTION 7.08. Headings. The headings of articles and sections in
--------
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
<PAGE>
32
IN WITNESS WHEREOF, KEYCORP and ____________________ have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all HOLDERS of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
KeyCorp
By:_______________________________
Attest: Authorized Officer
__________________________________
By:_______________________________
Attest: Authorized Signatory
<PAGE>
Exhibit A to Warrant Agreement
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN _____________ DEPOSITARY SHARES
TDR
RECEIPT FOR DEPOSITARY SHARES,
EACH DEPOSITARY SHARE REPRESENTING [specify fraction]
INTEREST IN ONE SHARE OF _________ PREFERRED STOCK, CLASS ____ OF
KEYCORP
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
CUSIP ___________
SEE REVERSE FOR CERTAIN DEFINITIONS
___________, as Depositary (the "Depositary"), hereby certifies that_________ is
the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction] of
one share of _______ Preferred Stock, Class _, $1.00 par value (the "Preferred
Stock"), of KEYCORP, a corporation duly organized and existing under the laws of
the State of Ohio (the "Company"), on deposit with the Depositary, subject to
the terms and entitled to the benefits of the Deposit Agreement dated as of
___________, 199_ (the "Deposit Agreement"), among the Company, the Depositary
and the Holders from time to time of Receipts for Depositary Shares. By
accepting this Receipt the Holder hereof becomes a party to and agrees to be
bound by all the terms and conditions of the Deposit Agreement. This Receipt
shall not be valid or obligatory for any purpose or be entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the Depositary
by the manual signature of a duly authorized officer or, if executed in
facsimile by the Depositary, countersigned by a Registrar in respect of the
Receipts by the manual signature of a duly authorized officer thereof.
Dated: Countersigned:
By ____________________________ By ____________________________
Depositary Registrar
<PAGE>
[FORM OF REVERSE OF RECEIPT]
KEYCORP
KEYCORP WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF
RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE
CERTIFICATE OF AMENDMENT WITH RESPECT TO THE ________ PREFERRED STOCK, CLASS
______ OF KEYCORP. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED
ON THE FACE OF THIS RECEIPT.
The following abbreviations when used in the instructions on the face
of this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenant in common UNIF GIFT MIN ACT - _______ Custodian _______
(Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with
right of survivorship ------------------------------------------
and not as tenants in (State)
common
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
----------
For value received, ________________________________________ hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
- --------------------------------------------------------------------------------
______________________________________________________________ Depositary Shares
represented by the within Receipt, and do(es) hereby irrevocably constitute and
appoint ____ Attorney to transfer the said Depositary Shares on the books of the
within named Depositary with full power of substitution in the premises.
Dated _____________________
---------------------------------------
NOTICE: The signature to the assignment
must correspond with the name
as written upon the face of
this Receipt in every
particular, without alteration
or enlargement or any change
whatever.
<PAGE>
Exhibit (4)(j)
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN _____________ DEPOSITARY SHARES
TDR
RECEIPT FOR DEPOSITARY SHARES,
EACH DEPOSITARY SHARE REPRESENTING [specify fraction]
INTEREST IN ONE SHARE OF _________ PREFERRED STOCK, CLASS ____ OF
KEYCORP
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
CUSIP ___________
SEE REVERSE FOR CERTAIN DEFINITIONS
, as Depositary (the "Depositary"), hereby certifies that
_____________________
______________________ is
the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction] of
one share of _______ Preferred Stock, Class _, $1.00 par value (the "Preferred
Stock"), of KEYCORP, a corporation duly organized and existing under the laws of
the State of Ohio (the "Company"), on deposit with the Depositary, subject to
the terms and entitled to the benefits of the Deposit Agreement dated as of
___________, 199_ (the "Deposit Agreement"), among the Company, the Depositary
and the Holders from time to time of Receipts for Depositary Shares. By
accepting this Receipt the Holder hereof becomes a party to and agrees to be
bound by all the terms and conditions of the Deposit Agreement. This Receipt
shall not be valid or obligatory for any purpose or be entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the Depositary
by the manual signature of a duly authorized officer or, if executed in
facsimile by the Depositary, countersigned by a Registrar in respect of the
Receipts by the manual signature of a duly authorized officer thereof.
Dated: Countersigned:
By ____________________ By __________________________
Depositary Registrar
<PAGE>
[FORM OF REVERSE OF RECEIPT]
KEYCORP
KEYCORP WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF
RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE
CERTIFICATE OF AMENDMENT WITH RESPECT TO THE ________ PREFERRED STOCK, CLASS
______ OF KEYCORP. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED
ON THE FACE OF THIS RECEIPT.
The following abbreviations when used in the instructions on the face
of this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenant in common UNIF GIFT MIN ACT - _______ Custodian ________
(Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with
right of survivorship _______________________________________________
and not as tenants in (State)
common
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
----------
For value received, hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
- -------------------------------------------------------------------------------
_____________________________________________________________ Depositary Shares
represented by the within Receipt, and do(es) hereby irrevocably constitute and
appoint_____ Attorney to transfer the said Depositary Shares on the books of the
within named Depositary with full power of substitution in the premises.
Dated ____________________
---------------------------------------
NOTICE: The signature to the assignment
must correspond with the name
as written upon the face of
this Receipt in every
particular, without alteration
or enlargement or any change
whatever.
<PAGE>
Exhibit No. 5
May 19, 1994
KeyCorp
127 Public Square
Cleveland, Ohio 44114
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to KeyCorp (the "Corporation") in connection
with the Registration Statement on Form S-3 filed on May 16, 1994 with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Registration Statement"). The Registration Statement covers up
to $750,000,000 of securities of the Corporation, consisting of:
(a) senior unsecured debt securities (the "Senior Debt Securities") to be
issued from time to time under an Indenture, substantially in the form
of Exhibit 4(c) to the Registration Statement, between the Corporation
and Bankers Trust New York Corporation, as trustee (the "Senior
Indenture");
(b) subordinated unsecured debt securities (the "Subordinated Debt
Securities" and together with the Senior Debt Securities being
referred to herein collectively as the "Debt Securities") to be issued
from time to time under an Indenture, substantially in the form of
Exhibit 4(d) to the Registration Statement, between the Corporation
and Bankers Trust New York Corporation, as trustee (the "Subordinated
Indenture" and together with the Senior Indenture being referred to
herein collectively as the "Indentures");
(c) shares of preferred stock, with a par value of $1 each, of the
Corporation (the "Preferred Stock");
(d) depositary receipts (the "Depositary Receipts") for depositary shares
(the "Depositary Shares") representing an interest in shares of
Preferred Stock of the Corporation to be issued under a Deposit
Agreement, substantially in the form of Exhibit 4(i) to the
Registration Statement (the "Deposit Agreement"), between the
Corporation and
<PAGE>
a bank or trust company, as depositary (the "Depositary");
(e) common shares, with a par value of $1 each, of the Corporation
(the "Common Shares"); and
(f) warrants entitling the holder to purchase Debt Securities (the "Debt
Warrants"), Preferred Stock (the "Preferred Stock Warrants"), Common
Shares (the "Common Share Warrants") or Depositary Shares (the
"Depositary Share Warrants" and together with the Debt Warrants, the
Preferred Stock Warrants, and the Common Share Warrants, being
referred to herein collectively as the "Securities Warrants") to be
issued from time to time under a Warrant Agreement, substantially in
the form of Exhibit 4(g) to the Registration Statement (the
"Securities Warrant Agreement"), between the Corporation and a bank or
trust company, as warrant agent (the "Securities Warrant Agent").
The Debt Securities, Preferred Stock, Depositary Shares, Common
Shares, Debt Warrants, Preferred Stock Warrants, Depositary Share Warrants and
Common Share Warrants are referred to herein collectively as the "Securities".
Certain issues of Debt Securities may provide that such Debt Securities are
convertible at the option of a holder or the Corporation into Capital Securities
(as defined in the Registration Statement) of the Corporation and certain series
of Preferred Stock may provide that the Preferred Stock of such series is
convertible at the option of the holder into Common Shares or any other class or
series of Capital Securities of the Corporation or convertible at the option of
the Corporation into Capital Securities or other debt securities of the
Corporation.
We are familiar with the corporate proceedings of the Corporation to
date with respect to the proposed issuance and sale of the Securities, and we
have examined such corporate records of the Corporation and such other documents
and certificates as we have deemed necessary as a basis for the opinions
hereinafter expressed. In rendering this opinion, we have assumed, without any
independent investigation, that: (i) all documents that have been submitted to
us as originals are authentic, and that all documents that have been submitted
to us as copies conform to authentic, original documents; and (ii) all persons
executing agreements, instruments, or documents examined or relied upon by us
had the capacity to sign such agreements, instruments, or documents, and all
such signatures are genuine.
<PAGE>
We have also assumed that each of the documents have been duly
authorized, executed and delivered by each of the parties thereto other than the
Corporation and constitute valid and legally binding obligations of such parties
enforceable in accordance with their respective terms, except as limited by
Title 11 of the United States Code (Bankruptcy) and other applicable bankruptcy,
insolvency, reorganization, arrangement, fraudulent transfer, moratorium or
other laws relating to or affecting creditors' rights generally and general
principles of equity, constitutional rights and public policy, regardless of
whether enforceability is considered in a proceeding at law or in equity and
except that the provisions requiring payment of attorneys' fees may not be
enforced by courts applying Ohio law.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
1. The Corporation is a corporation duly organized and validly
existing under the laws of the State of Ohio.
2. When in accordance with applicable law appropriate corporate
action has been taken to fix the terms of one or more issues of the Debt
Securities under the applicable Indenture and to authorize their issuance and
sale, and when the Debt Securities with the terms so fixed shall have been duly
authenticated under the applicable Indenture, and issued and sold as described
in the Prospectus included in the Registration Statement as it may at any time
be amended, and in any prospectus supplement relating thereto, pursuant to and
in a manner consistent with such corporate action, such Debt Securities will
constitute valid and legally binding obligations of the Corporation entitled to
the benefits provided by the applicable Indenture.
3. When and if any Debt Securities that have been issued in
accordance with paragraph 2 or paragraph 7 have been surrendered to the
Corporation for conversion in accordance with the applicable Indenture, and
Common Shares, shares of Preferred Stock or Debt Securities, as the case may be,
so issuable upon such conversion have been, in the case of Common Shares,
validly issued or delivered from Common Shares duly authorized and reserved
therefor by appropriate corporate action, or in the case of shares of Preferred
Stock, validly issued or delivered from shares of any Preferred Stock duly
authorized and reserved therefor after appropriate corporate and other action
has been taken in accordance with paragraph 4, or, in the case of Debt
Securities, validly issued or delivered from Debt Securities duly authorized and
the terms of which have been fixed by appropriate corporate action and
authenticated under an applicable Indenture, such Common Shares or Preferred
Stock will be validly issued, fully paid and nonassessable and
<PAGE>
such Debt Securities will constitute valid and legally binding obligations of
the Corporation entitled to the benefits provided by the applicable Indenture.
4. When appropriate corporate action has been taken to authorize the
issuance and fix the terms of one or more issues of Preferred Stock in
accordance with applicable law and the Corporation's charter documents, such
shares of Preferred Stock will have been duly authorized and, when issued and
sold as described in the Prospectus included in the Registration Statement as it
may at any time be amended, and in any prospectus supplement relating thereto,
pursuant to and in a manner consistent with such corporate action, such shares
of Preferred Stock will be validly issued, fully paid and nonassessable.
5. When and if any shares of Preferred Stock that have been issued in
accordance with paragraph 4 or paragraph 7 have been surrendered to the
Corporation for conversion, and Common Shares or Debt Securities, as the case
may be, so issuable upon such conversion, have been duly issued or delivered
from Common Shares duly authorized and reserved therefor by appropriate
corporate action, or, in accordance with paragraph 2, from Debt Securities duly
authorized and the terms of which have been fixed by appropriate corporate
action and authenticated under the applicable Indenture, as the case may be,
such Common Shares will be validly issued, fully paid and nonassessable and such
Debt Securities will constitute valid and legally binding obligations of the
Corporation entitled to the benefits provided by the applicable Indenture.
6. When appropriate corporate action has been taken to authorize the
issuance and fix the terms of one or more issues of Depositary Shares and the
underlying Preferred Stock in accordance with paragraph 4, and to authorize the
execution and delivery of the related Deposit Agreement, and when such Deposit
Agreement shall have been duly executed and delivered by the Corporation and the
Depositary, such Depositary Shares and shares of underlying Preferred Stock will
have been duly authorized and, when Depositary Receipts for such Depositary
Shares and the Depositary Shares shall have been issued and sold as described in
the prospectus included in the Registration Statement as it may at any time be
amended, and in any prospectus supplement relating thereto, or in accordance
with paragraph 7, pursuant to and in a manner consistent with such
authorization, and when the underlying Preferred Stock shall have been validly
issued after appropriate corporate action and other action has been taken in
accordance with paragraph 4, such Depositary Shares will be validly issued and
will entitle the holders thereof to the rights specified in the Depositary
Receipts and the Deposit Agreement.
<PAGE>
7. When appropriate corporate action has been taken to authorize the
Corporation to execute and deliver the Securities Warrant Agreement, to fix the
terms of one or more issues thereunder of Securities Warrants, and to authorize
their issue, and such Securities Warrant Agreement shall have been duly executed
and delivered by the Corporation and the Securities Warrant Agent, and when
Securities Warrants with terms so fixed shall have been duly countersigned by
the Securities Warrant Agent and duly issued under the respective Securities
Warrant Agreement in accordance with such corporate action, such Securities
Warrants shall constitute valid and legally binding obligations of the
Corporation, and, where applicable (i) the Debt Securities issuable upon
exercise of any such Securities Warrants, when, in accordance with paragraph 2,
duly authorized by appropriate corporate action and authenticated under the
applicable Indenture, and when paid for in accordance with the terms of the
applicable Securities Warrants, will constitute valid and legally binding
obligations of the Corporation entitled to the benefits provided by the
applicable Indenture, (ii) the shares of Preferred Stock issuable upon exercise
of any such Securities Warrants, when duly authorized and reserved therefor
after appropriate corporate and other action has been taken in accordance with
paragraph 4, and when paid for in accordance with the terms of the applicable
Securities Warrants, will be validly issued, fully paid and nonassessable, (iii)
the Common Shares issuable upon exercise of any such Securities Warrants when
duly authorized and reserved for issuance therefor by appropriate corporation
action, and when paid for in accordance with the terms of the applicable
Securities Warrants, will be validly issued, fully paid and nonassessable and
(iv) the Depositary Shares issuable upon exercise of any such Securities
Warrants when duly authorized by appropriate corporation action and other action
has been taken in accordance with paragraph 6, and when paid for in accordance
with the applicable Securities Warrants, will be validly issued and will entitle
the holders to the rights specified in the Depositary Receipts and the Deposit
Agreement.
The opinions set forth above are subject to (i) bankruptcy and other
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium and other similar
laws relating to or affecting the enforcement of creditors' rights generally,
(ii) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (iii) provisions of law that
require that a judgment for money damages rendered by a court in the United
States be expressed only in United States dollars.
<PAGE>
This opinion is given on the basis of the law and the facts existing
as of the date hereof. We assume no obligation to advise you of changes in
matters of fact or law which may thereafter occur. Our opinion is based on
statutory laws and judicial decisions that are in effect on the date hereof, and
we do not opine with respect to any law, regulation, rule or governmental policy
which may be enacted or adopted after the date hereof.
We are licensed to practice law in the State of Ohio and, accordingly,
the foregoing opinions are limited solely to the laws of the State of Ohio and
applicable laws of the United States. We call your attention to the fact that
the Indentures, the Deposit Agreement, the Securities Warrant Agreement and
certain other documents, agreements and instruments referred to above may be
governed by the laws of New York or a jurisdiction other than Ohio. We express
no opinion as to matters governed by any laws other than laws of the State of
Ohio and the Federal laws of the United States of America.
This opinion is intended solely for your use in connection with the
Corporation's Registration Statement on Form S-3 and may not be reproduced,
filed publicly, or relied upon by you for any other purpose or by any other
person for any purpose without our prior written consent.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement and to the
use of our name therein.
Very truly yours,
THOMPSON, HINE AND FLORY
