<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 3, 1995
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
KEYCORP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
OHIO 34-6542451
(STATE OR OTHER JURISDICTION OF INCORPORATION (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
OR ORGANIZATION)
</TABLE>
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:
<TABLE>
<S> <C>
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
</TABLE>
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED(1) REGISTERED(2) PER UNIT(3) PRICE(4) FEE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.......................
- --------------------------------------
Debt Warrants.........................
- --------------------------------------
Preferred Stock, with a par value of
$1 each.............................
- --------------------------------------
Depositary Shares.....................
- --------------------------------------
Preferred Stock Warrants.............. $845,000,000 $845,000,000 $291,378
- --------------------------------------
Depositary Share Warrants.............
- --------------------------------------
Common Shares, with a par value of $1
- --------------------------------------
Common Share Warrants.................
- --------------------------------------
Capital Securities(4).................
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</TABLE>
(Footnotes continued on next page)
<PAGE> 2
(Continued from previous page)
(1) This Registration Statement also covers contracts which may be issued by the
Registrant under which the counterparty may be required to purchase Debt
Securities, Preferred Stock, or Depositary Shares. Such contracts would be
issued with the Debt Securities, Preferred Stock, Depositary Shares, and/or
Warrants covered hereby. In addition, securities registered hereunder may be
sold separately, together, or as units with other securities registered
hereunder.
(2) In no event will the aggregate initial offering price of the Debt
Securities, Debt Warrants, Preferred Stock, Preferred Stock Warrants,
Depositary Shares, Depositary Share Warrants, Common Shares, Common Share
Warrants, and Capital Securities issued under this Registration Statement
and in the case of Warrants for which separate consideration is payable upon
issuance of underlying securities, securities issued upon exercise of
Warrants, exceed $900,000,000 (including those previously registered under
the Securities Act of 1933, as amended (the "Securities Act")) or the
equivalent thereof in one or more foreign currencies or units of one or more
foreign currencies or companies currencies (such as European Currency
Units). The aggregate amount of Common Shares registered hereunder is
further limited to that which is permissible under Rule 415(a)(4) under the
Securities Act. If any securities are issued at an original issue discount,
then additional securities may be issued so long as the aggregate initial
offering price of all such securities, together with the initial offering
price of all other securities reregistered hereunder or previously
registered under the Securities Act, does not exceed $900,000,000.
(3) The proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder or previously registered under the
Securities Act.
(4) No separate consideration will be received for (i) Common Shares or other
Capital Securities (which may consist of Common Shares or Preferred Stock)
that are issued upon conversion at the option of a holder of Debt
Securities, Preferred Stock, or Depositary Shares, or (ii) Capital
Securities or other debt securities that are issued upon conversion at the
option of the Corporation of Debt Securities, Preferred Stock, or Depositary
Shares. The proposed maximum aggregate offering price has been estimated
solely for the purpose of computing the registration fee pursuant to Rule
457 of the Securities Act of 1933.
(5) Includes associated rights (the "Rights") to purchase Common Shares. Until
the occurrence of certain prescribed events, none of which has occurred, the
Rights are not exercisable, are evidenced by the certificates representing
the Common Shares, and will be transferred along with and only with the
Common Shares.
In accordance with Rule 429 under the Securities Act, the Prospectus
included herein is a combined prospectus which also relates to KeyCorp's
Registration Statement on Form S-3, File No. 33-53643, effective date June 10,
1994, with respect to Debt Securities, Debt Warrants, Preferred Stock,
Depositary Shares, Preferred Stock Warrants, Depositary Share Warrants, Common
Shares, Common Share Warrants and Capital Securities. This Registration
Statement, which is a new Registration Statement on Form S-3, also constitutes a
first post-effective amendment to KeyCorp's Registration Statement on Form S-3,
File No. 33-53643. Such post-effective amendment shall hereafter become
effective concurrently with the effectiveness of this Registration Statement and
in accordance with Section 8(c) of the Securities Act. The aggregate amount of
securities covered by this Registration Statement and the other Registration
Statement referred to above to which the Prospectus contained herein relates
shall not exceed $900,000,000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
<PAGE> 3
PROSPECTUS SUPPLEMENT [LOGO HERE]
(To Prospectus Dated April , 1995)
$750,000,000
SENIOR MEDIUM-TERM NOTES, SERIES C
SUBORDINATED MEDIUM-TERM NOTES, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
KeyCorp (also referred to herein as the "Corporation") may offer from time to
time its senior Medium-Term Notes, Series C (the "Senior Notes") and its
subordinated Medium-Term Notes, Series B (the "Subordinated Notes" and together
with the Senior Notes, the "Notes") with an aggregate principal amount of up to
U.S. $750,000,000, (or, if any Notes are to be Original Issue Discount Notes,
Foreign Currency Notes or Indexed Notes (as each term is defined under
"Description of Notes"), such principal amount as shall result in an initial
aggregate offering price equivalent to no more than $750,000,000), subject to
reduction as a result of the sale of other Securities of the Corporation. See
"Plan of Distribution." Each Note will mature on any day nine months or more
from its date of issue, as agreed upon by the Corporation and the purchaser, and
may be subject prior to maturity to redemption at the option of the Corporation
or repayment at the option of the registered holder. Each Note will bear
interest either at a fixed rate (a "Fixed Rate Note") established by the
Corporation at the date of issue of such Note, which may be zero in the case of
certain Original Issue Discount Notes, or at a floating rate (a "Floating Rate
Note"), as set forth therein and specified in the applicable Pricing Supplement
(as defined below). A Fixed Rate Note may pay a level amount in respect of both
interest and principal amortized over the life of the Note (an "Amortizing
Note"). The Notes may be issued as Senior Notes or Subordinated Notes, as set
forth in the applicable Pricing Supplement. Subordinated Notes will be
subordinated to all existing and future Senior Indebtedness and, in certain
events involving the insolvency of the Corporation, to Other Senior Obligations.
See "Description of Debt Securities -- Subordination of Subordinated Debt
Securities" in the accompanying Prospectus.
Unless otherwise specified in the applicable Pricing Supplement, interest on
each Fixed Rate Note will be payable each June 1 and December 1 and at maturity.
Interest on each Floating Rate Note is payable on the dates set forth herein and
in the applicable Pricing Supplement. Unless otherwise specified in the
applicable Pricing Supplement, Amortizing Notes will pay principal and interest
semiannually each June 1 and December 1, or quarterly each March 1, June 1,
September 1 and December 1, and at maturity. See "Description of Notes." Unless
otherwise specified in the applicable Pricing Supplement, the Notes may not be
redeemed by the Corporation or repaid at the option of the holder prior to
maturity. Notes denominated in U.S. dollars will be issued in denominations of
$100,000 or any amount in excess thereof which is an integral multiple of
$1,000. The authorized denominations of Foreign Currency Notes will be set forth
in the applicable Pricing Supplement. Any terms relating to Notes being
denominated in one or more foreign currencies, currency units, or composite
currencies ("Specified Currency") ("Foreign Currency Notes") will be set forth
in the applicable Pricing Supplement.
Each Note will be issued only in fully registered form and will be represented
either by a Global Security registered in the name of The Depository Trust
Company, as Depository or a nominee thereof (a "Book-Entry Note"), or by a
certificate issued in definitive form (a "Certificated Note"), as set forth in
the applicable Pricing Supplement. Beneficial interests in Global Securities
representing Book-Entry Notes will be shown on, and transfer thereof will be
effected through, the records maintained by the Depository (with respect to
participants' interests) and its participants. Book-Entry Notes will not be
issuable as Certificated Notes except as described under "Description of Debt
Securities -- Book-Entry Procedures" in the accompanying Prospectus.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT, ANY SUPPLEMENT HERETO OR THE
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE NOTES OFFERED HEREBY ARE NOT DEPOSITS OR SAVINGS ACCOUNTS BUT ARE UNSECURED
DEBT OBLIGATIONS OF KEYCORP AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENT AGENCY OR INSTRUMENTALITY.
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<TABLE>
<CAPTION>
PRICE TO AGENTS' DISCOUNTS PROCEEDS TO
PUBLIC(1) AND COMMISSIONS(2) CORPORATION(2)(3)
<S> <C> <C> <C>
Per Note............................. 100% .125%-.750% 99.875%-99.250%
Total(4)............................. $750,000,000 $937,500-5,625,000 $749,062,500-$744,375,000
</TABLE>
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(1) Unless otherwise specified in the applicable Pricing Supplement, Notes will
be sold at 100% of their principal amount. If the Corporation issues any
Note at a discount from or at a premium over its principal amount, the Price
to Public of such Note will be set forth in the applicable Pricing
Supplement. Notes may be resold by the Agents, acting as principals, at
market prices prevailing at the time of sale, at prices related to such
prevailing prices, or at negotiated prices.
(2) Unless otherwise specified in the applicable Pricing Supplement, with
respect to Notes with Maturity Dates from 9 months to 30 years from the date
of issue, the Corporation will pay a commission to the Agents (as defined
below in "Plan of Distribution") ranging from .125% to .750% of the
principal amount of each Note. With respect to Notes with a Maturity Date
that is longer than 30 years from the date of issue sold through any Agent,
the rate of commission will be negotiated at the time of sale and will be
specified in the applicable Pricing Supplement. The Corporation may also
sell Notes to an Agent, as principal, at negotiated discounts, for resale to
investors and other purchasers. The Corporation has agreed to indemnify each
Agent against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
(3) Before deducting expenses payable by the Corporation estimated to be
$674,378.
(4) Or the equivalent thereof, if any of the Notes are denominated other than in
U.S. dollars.
The Notes are being offered by the Corporation on a continuous basis through the
Agents, each of which has agreed to use its reasonable efforts to solicit offers
to purchase Notes. The Corporation may also sell Notes to an Agent acting as
principal for its own account or for resale to one or more investors and other
purchasers at varying prices related to prevailing market prices at the time of
resale or, if so agreed, at a fixed public offering price. No termination date
for the offering of the Notes has been established. The Corporation or an Agent
may reject any offer in whole or in part. The Corporation reserves the right to
withdraw, cancel or modify the offer made hereby without notice. The Corporation
reserves the right to sell Notes directly on its own behalf and accept (but not
solicit) offers to purchase Notes through additional agents on substantially the
same terms and conditions (including commission rates) as would apply to
purchases of Notes by or through the Agents. The Notes will not be listed on any
securities exchange, and there can be no assurance that the Notes offered hereby
will be sold or that there will be a secondary market for the Notes. See "Plan
of Distribution."
SALOMON BROTHERS INC
CS FIRST BOSTON
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
The date of this Prospectus Supplement is April , 1995
<PAGE> 4
IN CONNECTION WITH THIS OFFERING MADE PURSUANT TO THIS PROSPECTUS
SUPPLEMENT AND THE APPLICABLE PRICING SUPPLEMENT, THE AGENTS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES
OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
S-1
<PAGE> 5
SELECTED CONSOLIDATED FINANCIAL DATA
The following table presents summary consolidated financial data derived
from the consolidated financial statements of the Corporation and notes thereto.
On March 1, 1994, KeyCorp ("old KeyCorp"), a New York corporation and financial
services holding company headquartered in Albany, New York, merged into and with
Society Corporation ("Society"), an Ohio corporation and a financial services
holding company headquartered in Cleveland, Ohio, pursuant to an Agreement and
Plan of Merger and a related Supplemental Agreement to Agreement and Plan of
Merger, each dated as of October 1, 1993, and each as amended. In the merger,
Society was the surviving corporation, but changed its name to KeyCorp. The
Merger was accounted for as a pooling of interests and, accordingly, the
financial data below is presented as if old KeyCorp and Society had been
combined for all periods presented. This summary is qualified in its entirety by
the detailed information and financial statements included in the documents
incorporated by reference under "Incorporation of Certain Documents by
Reference."
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------
1994 1993 1992 1991 1990
--------- --------- --------- --------- ---------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
FOR THE PERIOD
Interest income............................... $ 4,490.1 $ 4,213.9 $ 4,198.8 $ 4,652.4 $ 4,528.8
Interest expense.............................. 1,796.8 1,534.9 1,750.1 2,519.4 2,667.7
Net interest income........................... 2,693.3 2,679.0 2,448.7 2,133.0 1,861.1
Provision for loan losses..................... 125.2 211.7 338.4 466.2 517.2
Noninterest income............................ 882.6 1,001.7 925.2 849.3 744.2
Noninterest expense........................... 2,167.2 2,385.1 2,170.4 2,065.7 1,819.5
Income before income taxes.................... 1,283.5 1,083.9 865.1 450.4 268.6
Net income.................................... 853.5 709.9 592.1 313.7 256.1
Net income applicable to Common Shares........ 837.5 691.8 568.1 297.5 249.0
PER COMMON SHARE
Net income.................................... $ 3.45 $ 2.89 $ 2.42 $ 1.31 $ 1.13
Cash dividends................................ 1.28 1.12 .98 .92 .88
Weighted average Common Shares (000).......... 243,067.5 239,775.2 235,004.8 227,116.2 220,078.6
AT PERIOD-END
Loans......................................... $46,224.7 $40,071.3 $36,021.8 $35,534.3 $34,193.7
Earning assets................................ 60,046.5 54,352.7 49,380.8 48,207.9 44,668.2
Total assets.................................. 66,798.1 59,631.2 55,068.4 53,600.9 49,953.4
Deposits...................................... 48,564.2 46,499.1 43,433.1 42,835.0 40,935.3
Long-term debt................................ 3,569.8 1,763.9 1,790.1 1,224.5 1,145.2
Common shareholders' equity................... 4,538.5 4,233.6 3,683.3 3,272.4 2,941.7
Total shareholders' equity.................... 4,698.5 4,393.6 3,927.3 3,516.4 3,025.7
PERFORMANCE RATIOS
Return on average total assets................ 1.36% 1.24% 1.13% .60% .54%
Return on average common equity............... 18.87 17.27 16.33 9.29 8.39
Efficiency(1)................................. 59.39 60.50 60.96 65.27 66.92
Overhead(2)................................... 46.14 46.85 47.21 52.63 54.58
Net interest margin........................... 4.83 5.31 5.31 4.71 4.53
CAPITAL RATIOS AT PERIOD-END
Tangible equity to tangible assets............ 6.19% 6.51% 6.11% 5.45% 4.79%
Tier I risk-adjusted capital.................. 8.48 8.73 8.56 7.67 6.75
Total risk-adjusted capital................... 11.62 12.22 11.73 9.80 9.17
Leverage...................................... 6.63 6.72 6.56 5.97 5.23
</TABLE>
S-2
<PAGE> 6
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------
1994 1993 1992 1991 1990
--------- --------- --------- --------- ---------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
ASSET QUALITY DATA
Nonperforming loans........................... $ 256.0 $ 336.3 $ 552.9 $ 729.5 $ 798.9
Nonperforming assets.......................... 339.8 500.1 900.2 1,071.9 1,013.2
Allowance for loan losses..................... 830.3 802.7 782.6 793.5 677.3
Nonperforming loans to period-end loans....... .55% .84% 1.53% 2.05% 2.34%
Nonperforming assets to period-end loans plus
OREO and other nonperforming assets......... .73 1.24 2.47 2.99 2.94
Allowance for loan losses to nonperforming
loans....................................... 324.27 238.69 141.54 108.79 84.78
Allowance for loan losses to period-end
loans....................................... 1.80 2.00 2.17 2.23 1.98
Net loan charge-offs to average loans......... .26 .56 1.02 1.11 1.02
RATIO OF EARNINGS TO FIXED CHARGES(3)
Excluding deposit interest.................... 3.50x 4.15x 3.67x 2.07x 1.57x
Including deposit interest.................... 1.70x 1.69x 1.48x 1.18x 1.10x
</TABLE>
- ---------------
The comparability of the information presented above is affected by certain
acquisitions and divestitures completed by KeyCorp in the time periods
presented.
(1) Calculated as noninterest expense (excluding merger and integration charges
and other significant nonrecurring charges) divided by taxable-equivalent
net interest income plus noninterest income (excluding net securities
transactions and certain gains on asset sales).
(2) Calculated as noninterest expense (excluding merger and integration charges
and other significant nonrecurring charges) less noninterest income
(excluding net securities transactions and certain gains on assets sales)
divided by taxable-equivalent net interest income.
(3) Earnings represent consolidated income before income taxes plus fixed
charges. Fixed charges include consolidated interest expense (excluding or
including interest on deposits as the case may be) and the proportion deemed
representative of the interest factor of rental expense, net of income from
subleases.
S-3
<PAGE> 7
DESCRIPTION OF NOTES
The following description of the particular terms of the Notes offered
hereby supplements, and to the extent inconsistent therewith replaces, the
description of the general terms and provisions of the Debt Securities set forth
under the heading "Description of Debt Securities" in the accompanying
Prospectus, to which reference is hereby made. The particular terms of the Notes
sold pursuant to any pricing supplement (a "Pricing Supplement") will be
described therein. The terms and conditions set forth in "Description of Notes"
will apply to each Note unless otherwise specified in the applicable Pricing
Supplement and in such Note. Capitalized terms not defined herein shall have the
same meanings assigned to such terms in the Prospectus or the Applicable
Indenture. Reference herein to "U.S. dollars" or "U.S. $" or "$" are to the
currency of the United States of America.
GENERAL
The Notes offered hereby, if Senior Debt Securities, will be issued under
the Senior Indenture, as amended or supplemented. Notes issued under the Senior
Indenture will rank equally with all other unsecured and unsubordinated
indebtedness of the Corporation which is not accorded a priority under
applicable law. Notes issued under the Subordinated Indenture will be
subordinated in right of payment to the prior payment in full of the Senior
Indebtedness of the Corporation and, in certain events involving the insolvency
of the Corporation, Other Senior Obligations of the Corporation. See
"Description of Debt Securities -- Subordination of Subordinated Debt
Securities" in the accompanying Prospectus. As of December 31, 1994, the
Corporation had outstanding approximately $902.2 million aggregate principal
amount of Senior Indebtedness and $538.4 million of Other Senior Obligations.
The Notes will be offered on a continuous basis. The Notes offered by this
Prospectus Supplement issued under the Applicable Indenture will constitute all
or part of a single series for purposes of such Indenture. The Notes of such
series offered hereby are limited to an aggregate initial offering price of U.S.
$750,000,000 subject to reduction as a result of the sale by the Corporation of
other Securities referred to in the accompanying Prospectus. See "Plan of
Distribution." For purposes of this Prospectus Supplement, (i) the principal
amount of any Original Issue Discount Note means the Issue Price (as defined
below) of such Note and (ii) the principal amount of any Note issued in the
Specified Currency means the U.S. dollar equivalent on the date of issue of the
Issue Price of such Note.
Each Note will mature on any day nine months or more from its date of
issue, as selected by the initial purchaser and agreed to by the Corporation
(the "Stated Maturity") which date may be subject to extension at the option of
the Corporation (subject to applicable regulatory approval in the case of
subordinated Notes) or the holder, and may be subject to redemption at the
option of the Corporation or repayment at the option of the holder prior to its
Stated Maturity as specified in the applicable Pricing Supplement. See "Optional
Redemption" and "Repayment at the Noteholder's Option" below.
Each Note will be issued initially as either a Book-Entry Note or a
Certificated Note. Except as set forth under "Description of Debt
Securities -- Book-Entry Procedures" in the accompanying Prospectus, Book-Entry
Notes will not be issuable as Certificated Notes. See "Book-Entry System" below.
Unless otherwise specified in the applicable Pricing Supplement, the Notes
will be denominated in U.S. dollars and payments of principal and any premium,
and interest on the Notes will be made in U.S. dollars. Except as specified for
Notes not denominated in U.S. dollars or as otherwise provided in the applicable
Pricing Supplement, the Notes will be issued only in fully registered form in
denominations of U.S.$100,000 or any amount in excess thereof which is an
integral multiple of U.S.$1,000. If any of the Notes are to be denominated in a
Specified Currency other than U.S. dollars, additional information pertaining to
the terms of such Notes and other matters relevant to the holders thereof will
be described in the applicable Pricing Supplement.
The Notes may be issued as Original Issue Discount Notes (including Zero
Coupon Notes, as defined below) as indicated in the applicable Pricing
Supplement. An "Original Issue Discount Note" means any Note that provides for
an amount less than the entire principal amount thereof to be payable upon
declaration
S-4
<PAGE> 8
of acceleration of the maturity thereof pursuant to the Applicable Indenture.
See "United States Tax Considerations -- Original Issue Discount and Acquisition
Discount and Foreign Currency Notes" below.
The Notes may be issued as Indexed Notes, Amortizing Notes, Renewable Notes
and Extendible Notes, as indicated in the applicable Pricing Supplement. See
"Indexed Notes", "Amortizing Notes", "Renewable Notes" and "Extendible Notes"
below.
The Pricing Supplement relating to each Note will specify the price
(expressed as a percentage of the aggregate principal amount thereof) at which
such Note will be issued if other than 100% (the "Issue Price"), the principal
amount, the interest rate or interest rate formula, ranking, maturity, currency,
(including one or more foreign currencies, currency units or composite
currencies), any redemption or repayment provisions and any other terms on which
each such Note will be issued that are not inconsistent with the provisions of
the Applicable Indenture.
Unless otherwise specified in the applicable Pricing Supplement, the Notes,
except for Amortizing Notes, will not be subject to any sinking fund.
The Notes may be presented for payment of principal and interest, transfer
of the Notes will be registrable, and the Notes will be exchangeable, at Society
National Bank, as paying agent (the "Paying Agent") in The City of Cleveland;
provided that Book-Entry Notes will be exchangeable only in the manner and to
the extent set forth below under "Description of Debt Securities -- Book-Entry
Procedures" in the accompanying Prospectus.
As used herein, "Business Day" shall mean any day other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are generally authorized or required by law or regulation to close in The City
of New York and (i) in respect of LIBOR Notes (as defined below), in the city of
London, (ii) with respect to Notes denominated or payable in a Specified
Currency other than ECUs in the financial center of the country issuing the
Specified Currency, (iii) with respect to Notes denominated or payable in ECUs,
in the financial center of each country that issues a component currency of the
ECU, and that is not a non-ECU settlement day. "London Banking Day" shall mean
any day on which dealings in deposits in U.S. dollars are transacted in the
London interbank market.
As used herein, an "Interest Payment Date" with respect to any Note shall
be a date on which, under the terms of such Note, regularly scheduled interest
shall be payable. Unless otherwise specified in the applicable Pricing
Supplement, "Record Date" with respect to any Interest Payment Date shall be the
date fifteen calendar days (whether or not such date is a Business Day) prior to
such Interest Payment Date.
Unless otherwise specified in the applicable Pricing Supplement, Society
National Bank will act as Authenticating Agent for the Notes pursuant to an
appointment by the Trustee. Unless otherwise specified in the applicable Pricing
Supplement, Society National Bank will also act as Registrar for the Notes
pursuant to an appointment by the Trustee.
PAYMENT CURRENCY AND CURRENCY EXCHANGE INFORMATION
Purchasers are required to pay for Notes denominated in a Specified
Currency in such Specified Currency, and payments of principal, premium, if any,
and interest on such Notes will be made in such Specified Currency, unless
otherwise provided in the applicable Pricing Supplement. Currently, there are
limited facilities in the United States for the conversion of U.S. dollars into
foreign currencies and vice versa. In addition, most banks do not currently
offer non-U.S. dollar denominated checking or savings account facilities in the
United States. Accordingly, unless otherwise specified in the applicable Pricing
Supplement, or unless alternative arrangements are made, payment of principal,
premium, if any, and interest on Notes in a Specified Currency other than U.S.
dollars will be made to an account at a bank outside the United States.
If the applicable Pricing Supplement provides for payments of principal of,
premium, if any, and interest on a non-U.S. dollar denominated Note to be made
in U.S. dollars or for payments of principal of, premium, if any, and interest
on a U.S. dollar denominated Note to be made in a Specified Currency other than
U.S. dollars, the conversion of the Specified Currency into U.S. dollars or U.S.
dollars into the Specified Currency, as the case may be, will be handled by the
Exchange Rate Agent identified in the applicable Pricing
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<PAGE> 9
Supplement. The costs of such conversion will be borne by the holder of such
Note through deductions from such payments.
If the applicable Pricing Supplement provides for payments of principal of,
premium, if any, and interest on a non-U.S. dollar denominated Note to be made,
at the option of the holder of such Note, in U.S. dollars, conversion of the
Specified Currency into U.S. dollars will be based on the highest bid quotation
in The City of New York received by the Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers selected
by the Exchange Rate Agent (one of which may be the Exchange Rate Agent unless
the Exchange Rate Agent is the applicable Agent) for the purchase by the quoting
dealer of the Specified Currency for U.S. dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to the holders of
Notes and at which the applicable dealer commits to execute a contract. If none
of such bid quotations are available, payments will be made in the Specified
Currency. All currency exchange costs will be borne by the holders of Notes by
deductions from such payments.
Except as set forth below, if the principal of, premium, if any, or
interest on, any Note is payable in a Specified Currency other than U.S. dollars
and such Specified Currency is not available to the Corporation for making
payments thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Corporation or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Corporation will be entitled to satisfy its obligations to holders of
the Notes by making such payments in U.S. dollars on the basis of the Market
Exchange Rate on the date of such payment or, if the Market Exchange Rate is not
available on such date, as of the most recent practicable date. Any payment made
under such circumstances in U.S. dollars where the required payment is in a
Specified Currency other than U.S. dollars will not constitute an Event of
Default or Default under the Applicable Indenture.
If payment in respect of a Note is required to be made in ECUs and ECUs are
unavailable due to the imposition of exchange controls or other circumstances
beyond the Corporation's control or are no longer used in the European Monetary
System, then all payments in respect of such Note shall be made in U.S. dollars
until ECUs are again available or so used. The amount of each payment in U.S.
dollars shall be computed on the basis of the equivalent of the ECU in U.S.
dollars, determined as described below, as of the second Business Day prior to
the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Corporation or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of the ECU as of the last date on which the ECU was
used in the European Monetary System. The equivalent of the ECU in U.S. dollars
shall be calculated by aggregating the U.S. dollar equivalents of the
Components. The U.S. dollar equivalent of each of the Components shall be
determined by the Corporation or such agent on the basis of the most recently
available Market Exchange Rates for such Components.
If the official unit of any Component is altered by way of combination or
subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more Components are
consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the appropriate amounts of the consolidated component currencies
expressed in such single currency. If any Component is divided into two or more
currencies, the amount of the original component currency shall be replaced by
the appropriate amounts of such two or more currencies, the sum of which shall
be equal to the amount of the original component currency.
All determinations referred to above made by the Corporation or its agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes.
INTEREST AND PRINCIPAL PAYMENTS
Interest will be payable to the person in whose name the Note is registered
at the close of business on the applicable Record Date; provided that the
interest payable upon maturity, redemption or repayment (whether
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<PAGE> 10
or not the date of maturity, redemption or repayment is an Interest Payment
Date) will be payable to the person to whom principal is payable. Unless
otherwise specified in the applicable Pricing Supplement, the initial interest
payment on a Note will be made on the first Interest Payment Date falling after
the date the Note is issued; provided, however, that payments of interest (or,
in the case of an Amortizing Note, principal and interest) on a Note issued less
than 15 calendar days before an Interest Payment Date will be paid on the next
succeeding Interest Payment Date to the holder of record on the Record Date with
respect to such succeeding Interest Payment Date, unless otherwise specified in
the applicable Pricing Supplement.
U.S. dollar payments of interest, other than interest payable at maturity
(or on the date of redemption or repayment, if a Note is redeemed or repaid
prior to maturity), will be made by check mailed to the address of the person
entitled thereto as shown on the Note register. U.S. dollar payments of
principal, premium, if any, and interest upon maturity, redemption or repayment
will be made in immediately available funds against presentation and surrender
of the Note. Notwithstanding the foregoing, (a) the Depositary, as holder of
Book-Entry Notes, shall be entitled to receive payments of interest by wire
transfer of immediately available funds and (b) a holder of U.S.$1,000,000 (or
the equivalent) or more in aggregate principal amount of Certificated Notes
(whether having identical or different terms and provisions) shall be entitled
to receive payments of interest by wire transfer of immediately available funds
upon written request to the Paying Agent not later than 15 calendar days prior
to the applicable Interest Payment Date.
Notwithstanding the foregoing, unless otherwise specified in the applicable
Pricing Supplement, a holder of a Foreign Currency Note may elect to receive
payment of the principal of and any premium and interest on such Note in the
Specified Currency by transmitting a written request for such payment to the
Trustee at its Corporate Trust Office in the Borough of Manhattan, The City of
New York, or the Paying Agent on or prior to the Record Date in the case of an
interest payment or at least 15 calendar days prior to the Stated Maturity in
the case of a principal or premium payment. Such request may be in writing with
a signature guarantee, (mailed or hand delivered), or by cable, telex or other
form of facsimile transmission. A holder of a Foreign Currency Note may elect to
receive payment in the Specified Currency for all principal and any premium and
interest payments and need not file a separate election for each payment. Such
election will remain in effect until revoked by written notice to the Trustee,
but written notice of any such revocation must be received by the Trustee on or
prior to the relevant Record Date or at least 15 calendar days prior to the
Stated Maturity, as the case may be. Holders of Foreign Currency Notes whose
Notes are to be held in the name of a broker or nominee should contact such
broker or nominee to determine whether and how an election to receive payments
in the Specified Currency may be made.
Unless otherwise specified in the applicable Pricing Supplement, a
beneficial owner of Book-Entry Notes denominated in a Specified Currency
electing to receive payments of principal or any premium or interest in the
Specified Currency must notify the Participant through which its interest is
held on or prior to the applicable Record Date, in the case of a payment of
interest, and on or prior to the fifteenth calendar day prior to the Stated
Maturity, in the case of payment of principal or premium, of such beneficial
owner's election to receive all or a portion of such payment in a Specified
Currency. Such Participant must notify the Depository of such election on or
prior to the third Business Day after such Regular Record Date. The Depository
will notify the Paying Agent of such election on or prior to the fifth Business
Day after such Regular Record Date. If complete instructions are received by the
Participant and forwarded by the Participant to the Depository, and by the
Depository to the Paying Agent, on or prior to such dates, the beneficial owner
will receive payments in the Specified Currency.
Unless otherwise specified in the applicable Pricing Supplement or unless
alternative arrangements are made, payments of principal, premium, if any, and
interest on Notes in a Specified Currency other than U.S. dollars will be made
by wire transfer of immediately available funds to an account maintained by the
payee with a bank located outside the United States if the holder of such Notes
provides the Paying Agent with the appropriate wire transfer instructions not
later than 15 calendar days prior to the applicable payment date. If such wire
transfer instructions are not so provided, payments of principal, premium, if
any, and interest on such Notes will be made by check payable in such Specified
Currency mailed to the address of the Person entitled thereto as such address
shall appear in the Note register.
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<PAGE> 11
Certain Notes, including Original Issue Discount Notes, may be considered
to be issued with original issue discount, which must be included in income for
United States federal income tax purposes at a constant rate. See "United States
Tax Considerations -- Original Issue Discount and Acquisition Discount and
Foreign Currency Notes" below. Unless otherwise specified in the applicable
Pricing Supplement, if the principal of any Original Issue Discount Note is
declared to be due and payable immediately as described under "Description of
Debt Securities -- Events of Default" in the accompanying Prospectus, the amount
of principal due and payable with respect to such Note shall be limited to the
aggregate principal amount of such Note multiplied by the sum of its Issue Price
(expressed as a percentage of the aggregate principal amount) plus the original
issue discount amortized from the date of issue to the date of declaration,
which amortization shall be calculated using the "interest method" (computed in
accordance with generally accepted accounting principles in effect on the date
of declaration). Special considerations applicable to any such Notes will be set
forth in the applicable Pricing Supplement.
FIXED RATE NOTES
Each Fixed Rate Note will bear interest from the date of issuance at the
annual rate stated on the face thereof, except as described below under
"Extension of Maturity," or "Renewal" until the principal thereof is paid or
made available for payment. Unless otherwise specified in the applicable Pricing
Supplement, such interest will be computed on the basis of a 360-day year of
twelve 30-day months. Unless otherwise specified in the applicable Pricing
Supplement, payments of interest on Fixed Rate Notes other than Amortizing Notes
will be made semiannually on each June 1 and December 1 and at maturity or upon
any earlier redemption or repayment.
If any Interest Payment Date for any Fixed Rate Note would fall on a day
that is not a Business Day, the interest payment shall be postponed to the next
day that is a Business Day, and no interest on such payment shall accrue for the
period from and after the Interest Payment Date. If the maturity date (or date
of redemption or repayment) of any Fixed Rate Note would fall on a day that is
not a Business Day, the payment of principal, premium, if any, and interest may
be made on the next succeeding Business Day, and no interest on such payment
shall accrue for the period from and after the maturity date (or date of
redemption or repayment).
Interest payments for Fixed Rate Notes will include accrued interest from
the date of issue or from the last date in respect of which interest has been
paid or duly provided for, as the case may be, to, but excluding, the Interest
Payment Date or the date of maturity or earlier redemption or repayment, as the
case may be.
Amortizing Notes
Unless otherwise specified in the applicable Pricing Supplement, payments
of principal and interest on Amortizing Notes, which are securities on which
payments of principal and interest are made in equal installments over the life
of the security, will be made either quarterly on each March 1, June 1,
September 1 and December 1 or semiannually on each June 1 and December 1, as set
forth in the applicable Pricing Supplement, and at maturity or upon any earlier
redemption or repayment. Payments with respect to Amortizing Notes will be
applied first to interest due and payable thereon and then to the reduction of
the unpaid principal amount thereof. A table setting forth repayment information
in respect of each Amortizing Note will be provided to the original purchaser
and will be available, upon request, to subsequent holders.
FLOATING RATE NOTES
Each Floating Rate Note will bear interest from the date of issuance until
the principal thereof is paid or made available for payment at a rate determined
by reference to an interest rate basis (the "Base Rate"), which may be adjusted
by a Spread and/or Spread Multiplier (each as defined below). The applicable
Pricing Supplement will designate one or more of the following Base Rates as
applicable to each Floating Rate Note: (a) the CD Rate (a "CD Rate Note"), (b)
the Commercial Paper Rate (a "Commercial Paper Rate Note"), (c) the Federal
Funds Rate (a "Federal Funds Rate Note"), (d) LIBOR (a "LIBOR Note"), (e) the
Prime Rate (a "Prime Rate Note"), (f) the Treasury Rate (a "Treasury Rate
Note"), (g) the CMT Rate (a "CMT Rate Note"), (h) the 11th District Cost of
Funds Rate (an "11th District Cost of Funds Rate
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<PAGE> 12
Note") or (i) such other Base Rate as is set forth in such Pricing Supplement
and in such Floating Rate Note. The "Index Maturity" for any Floating Rate Note
is the period of maturity of the instrument or obligation from which the Base
Rate is calculated and will be specified in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
interest rate on each Floating Rate Note will be calculated by reference to the
specified Base Rate (i) plus or minus the Spread, if any, and/or (ii) multiplied
by the Spread Multiplier, if any. The "Spread" is the number of basis points
(one one-hundredth of a percentage point) specified in the applicable Pricing
Supplement to be added to or subtracted from the Base Rate for such Floating
Rate Note, and the "Spread Multiplier" is the percentage specified in the
applicable Pricing Supplement to be applied to the Base Rate for such Floating
Rate Note.
As specified in the applicable Pricing Supplement, a Floating Rate Note may
also have either or both of the following: (i) a maximum limitation, or ceiling,
on the rate of interest which may accrue during any interest period ("Maximum
Interest Rate"); and (ii) a minimum limitation, or floor, on the rate of
interest which may accrue during any interest period ("Minimum Interest Rate").
In addition to any Maximum Interest Rate that may be applicable to any Floating
Rate Note pursuant to the above provisions, the interest rate on a Floating Rate
Note will in no event be higher than the maximum rate permitted by New York law,
as the same may be modified by United States law of general application.
Unless otherwise specified in the applicable Pricing Supplement, the rate
of interest on each Floating Rate Note will be reset daily, weekly, monthly,
quarterly, semiannually or annually (such period being the "Interest Reset
Period" for such Note, and the first day of each Interest Reset Period being an
"Interest Reset Date"), as specified in the applicable Pricing Supplement.
Unless otherwise specified in the Pricing Supplement, the Interest Reset Date
will be, in the case of Floating Rate Notes which reset daily, each Business
Day; in the case of Floating Rate Notes (other than Treasury Rate Notes) which
reset weekly, the Wednesday of each week; in the case of Treasury Rate Notes
which reset weekly, the Tuesday of each week, except as provided below; in the
case of Floating Rate Notes which reset monthly, the third Wednesday of each
month; in the case of Floating Rate Notes which reset quarterly, the third
Wednesday of March, June, September and December; in the case of Floating Rate
Notes which reset semiannually, the third Wednesday of two months of each year,
as specified in the applicable Pricing Supplement; and in the case of Floating
Rate Notes which reset annually, the third Wednesday of one month of each year,
as specified in the applicable Pricing Supplement; provided, however, that the
interest rate in effect from the date of issue to the first Interest Reset Date
with respect to a Floating Rate Note will be the initial interest rate set forth
in the applicable Pricing Supplement (the "Initial Interest Rate"). If any
Interest Reset Date for any Floating Rate Note would otherwise be a day that is
not a Business Day, such Interest Reset Date shall be postponed to the next
succeeding Business Day, except that in the case of a LIBOR Note, if such
Business Day is in the next succeeding calendar month, such Interest Reset Date
shall be the next preceding Business Day.
Except as provided below and unless otherwise specified in the applicable
Pricing Supplement, interest on Floating Rate Notes will be payable: (i) in the
case of Floating Rate Notes with a daily, weekly or monthly Interest Reset Date
(other than the 11th District Cost of Funds Rate Notes), on the third Wednesday
of each month or on the third Wednesday of March, June, September and December,
or in the case of the 11th District Cost of Funds Rate Notes, all of which reset
monthly, the first calendar day of each month, as specified in the applicable
Pricing Supplement; (ii) in the case of Floating Rate Notes with a quarterly
Interest Reset Date, on the third Wednesday of March, June, September and
December; (iii) in the case of Floating Rate Notes with a semiannual Interest
Reset Date, on the third Wednesday of the two months specified in the applicable
Pricing Supplement; and (iv) in the case of Floating Rate Notes with an annual
Interest Reset Date, on the third Wednesday of the month specified in the
applicable Pricing Supplement and, in each case, at maturity. If any Interest
Payment Date for any Floating Rate Note would fall on a day that is not a
Business Day with respect to such Floating Rate Note, such Interest Payment Date
will be the following day that is a Business Day with respect to such Floating
Rate Note, except that, in the case of a LIBOR Note, if such Business Day is in
the next succeeding calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day with respect to such LIBOR
Note. If the maturity date or any earlier redemption or repayment date of a
Floating Rate Note would fall on a day that is not a Business Day, the payment
of principal, premium, if any, and interest will be made on the next succeeding
Business
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Day, and no interest on such payment shall accrue for the period from and after
such maturity, redemption or repayment date, as the case may be.
Unless otherwise specified in the applicable Pricing Supplement, interest
payments for Floating Rate Notes shall be the amount of interest accrued from,
and including, the date of issue or from, and including, the last date to which
interest has been paid to or duly provided for, to, but excluding, the Interest
Payment Date.
With respect to a Floating Rate Note, accrued interest shall be calculated
by multiplying the principal amount of such Floating Rate Note by an accrued
interest factor. Such accrued interest factor will be computed by adding the
interest factors calculated for each day in the period for which interest is
being paid. Unless otherwise specified in the applicable Pricing Supplement, the
interest factor for each such day is computed by dividing the interest rate
applicable to such day by 360, in the case of CD Rate Notes, Commercial Paper
Rate Notes, Federal Funds Rate Notes, LIBOR Notes, the 11th District Cost of
Funds Rate Notes and Prime Rate Notes or by the actual number of days in the
year, in the case of CMT Rate Notes and Treasury Rate Notes.
The interest rate in effect on any Interest Reset Date will be the
applicable rate as reset on such date. The interest rate applicable to any other
day is the interest rate from the immediately preceding Interest Reset Date (or,
if none, the Initial Interest Rate).
All percentages used in or resulting from any calculation of the rate of
interest on a Floating Rate Note will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward, and all dollar amounts used in or resulting
from such calculation on Floating Rate Notes will be rounded to the nearest
cent, with one-half cent rounded upward.
Unless otherwise specified in the applicable Pricing Supplement, Society
National Bank will be the calculation agent (the "Calculation Agent") with
respect to any issue of Floating Rate Notes. Upon the request of the holder of
any Floating Rate Note, the Calculation Agent will provide the interest rate
then in effect and, if determined, the interest rate that will become effective
on the next Interest Reset Date with respect to such Floating Rate Note.
Unless otherwise specified in the applicable Pricing Supplement, the
"Interest Determination Date" pertaining to an Interest Reset Date for CD Rate
Notes, Commercial Paper Rate Notes, Federal Funds Rate Notes, CMT Rate Notes and
Prime Rate Notes will be the second Business Day next preceding such Interest
Reset Date. The Interest Determination Date pertaining to an Interest Reset Date
for an 11th District Cost of Funds Rate Note (the "11th District Cost of Funds
Rate Interest Determination Date") will be the last working day of the month
immediately preceding such Interest Reset Date on which the Federal Home Loan
Bank of San Francisco (the "FHLB of San Francisco") publishes the Index (as
defined below under "-- Eleventh District Cost of Funds Rate Notes"). The
Interest Determination Date pertaining to an Interest Reset Date for a LIBOR
Note will be the second London Banking Day preceding such Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date for a
Treasury Rate Note will be the day of the week in which such Interest Reset Date
falls on which Treasury bills would normally be auctioned. Treasury bills are
normally sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
but such auction may be held on the preceding Friday. If, as the result of a
legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If an auction falls on a day that is an
Interest Reset Date, such Interest Reset Date will be the next following
Business Day.
Unless otherwise specified in the applicable Pricing Supplement, the
"Calculation Date", where applicable, pertaining to an Interest Determination
Date will be the earlier of (i) the tenth calendar day after such Interest
Determination Date or, if any such day is not a Business Day, the next
succeeding Business Day or, (ii) the Business Day preceding the applicable
Interest Payment Date or Stated Maturity, as the case may be.
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<PAGE> 14
Interest rates will be determined (which determination, in the absence of
manifest error, will be conclusive and binding) by the Calculation Agent as
follows:
CD Rate Notes
CD Rate Notes will bear interest at the interest rate (calculated with
reference to the CD Rate and the Spread and/or Spread Multiplier, if any, and
subject to the Minimum Interest Rate and the Maximum Interest Rate, if any)
specified in the CD Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, "CD Rate"
means, with respect to any Interest Determination Date, the rate on such date
for negotiable certificates of deposit having the Index Maturity designated in
the applicable Pricing Supplement as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)") under the heading "CDs (Secondary Market)," or, if
not so published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate will be the rate on
such Interest Determination Date for negotiable certificates of deposit of the
Index Maturity designated in the applicable Pricing Supplement as published by
the Federal Reserve Bank of New York in its daily statistical release "Composite
3:30 P.M. Quotations for U.S. Government Securities" (the "Composite
Quotations") under the heading "Certificates of Deposit." If such rate is not
yet published in either H.15(519) or the Composite Quotations by 3:00 P.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the CD Rate on such Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such
Interest Determination Date for certificates of deposit in the denomination of
$5,000,000 with a remaining maturity closest to the Index Maturity designated in
the Pricing Supplement of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York (which may include one or
more of the Agents) selected by the Calculation Agent for negotiable
certificates of deposit of major United States money center banks of the highest
credit standing in the market for negotiable certificates of deposit; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as set forth above, the CD Rate in effect for the applicable period
will be the same as the CD Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Rate Period, the rate of interest
payable on the CD Rate Notes for which such CD Rate is being determined shall be
the Initial Interest Rate).
Commercial Paper Rate Notes
Commercial Paper Rate Notes will bear interest at the interest rate
(calculated with reference to the Commercial Paper Rate and the Spread and/or
Spread Multiplier, if any, and subject to the Minimum Interest Rate and the
Maximum Interest Rate, if any) specified in the Commercial Paper Rate Notes and
in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement,
"Commercial Paper Rate" means, with respect to any Interest Determination Date,
the Money Market Yield (as defined below) of the rate on such date for
commercial paper having the Index Maturity specified in the applicable Pricing
Supplement, as such rate shall be published in H.15(519), under the heading
"Commercial Paper." In the event that such rate is not published by 9:00 A.M.,
New York City time, on the Calculation Date pertaining to such Interest
Determination Date, then the Commercial Paper Rate shall be the Money Market
Yield of the rate on such Interest Determination Date for commercial paper of
the specified Index Maturity as published in Composite Quotations under the
heading "Commercial Paper." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not yet available in either H.15(519) or Composite
Quotations, then the Commercial Paper Rate shall be the Money Market Yield of
the arithmetic mean of the offered rates as of 11:00 A.M., New York City time,
on such Interest Determination Date of three leading dealers of commercial paper
in The City of New York (which may include one or more of the Agents) selected
by the Calculation Agent for commercial paper of the specified Index Maturity,
placed for an industrial issuer whose bond rating is "AA," or the equivalent,
from a nationally recognized rating agency; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting offered
rates as mentioned in this sentence, the
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<PAGE> 15
Commercial Paper Rate in effect for the applicable period will be the same as
the Commercial Paper Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest payable on
the Commercial Paper Rate Notes for which such Commercial Paper Rate is being
determined shall be the Initial Interest Rate).
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
<TABLE>
<S> <C> <C>
D X 360
Money Market Yield = ------------- X 100
360 -(D X M)
</TABLE>
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Federal Funds Rate Notes
Federal Funds Rate Notes will bear interest at the interest rate
(calculated with reference to the Federal Funds Rate and the Spread and/or
Spread Multiplier, if any, and subject to the Minimum Interest Rate and the
Maximum Interest Rate, if any) specified in the Federal Funds Rate Notes and in
the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Federal Funds Rate" means, with respect to any Interest Determination Date, the
rate on such date for Federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)," or, if not so published by 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the Federal Funds Rate will be the rate on such Interest Determination Date
published in the Composite Quotations under the heading "Federal Funds/Effective
Rate." If such rate is not yet published in either H.15(519) or the Composite
Quotations by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Federal Funds Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight Federal
funds, as of 11:00 A.M., New York City time, on such Interest Determination
Date, arranged by three leading brokers of Federal funds transactions in The
City of New York (which may include one or more of the Agents) selected by the
Calculation Agent; provided, however, that if the brokers selected as aforesaid
by the Calculation Agent are not quoting as set forth above, the Federal Funds
Rate in effect for the applicable period will be the same as the Federal Funds
Rate for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable on the Federal Funds
Rate Notes for which such Federal Funds Rate is being determined shall be the
Initial Interest Rate).
LIBOR Notes
LIBOR Notes will bear interest at the interest rate (calculated with
reference to LIBOR and the Spread and/or Spread Multiplier, if any, and subject
to the Minimum Interest Rate and the Maximum Interest Rate, if any) specified in
the LIBOR Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, "LIBOR"
for each Interest Determination Date will be determined by the Calculation Agent
as follows:
(i) The rate for deposits in U.S. dollars of the Index Maturity
specified in the applicable Pricing Supplement, commencing on the second
Business Day immediately following such Interest Determination Date, that
appears on the Telerate Page 3750 as of 11:00 A.M., London time, on such
Interest Determination Date ("LIBOR Telerate"). "Telerate Page 3750" means
the display designated as page "3750" on the Telerate Service (or such
other page as may replace the page 3750 on that service or such other
service or services as may be designated by the British Bankers'
Association for the purpose of displaying London interbank offered rates
for U.S. dollar deposits).
(ii) As of the Interest Determination Date, the Calculation Agent will
determine the arithmetic mean of the offered rates for deposits in U.S.
dollars for the period of the Index Maturity designated in the applicable
Pricing Supplement, commencing on the second Business Day immediately
following such Interest Determination Date which appear on the Reuters
Screen LIBO Page at approximately
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11:00 A.M., London time, on such Interest Determination Date ("LIBOR
Reuters"). "Reuters Screen LIBO Page" means the display designated as Page
"LIBO" on the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBO page on that service for the purpose of displaying
London interbank offered rates of major banks).
If neither LIBOR Telerate nor LIBOR Reuters is specified in the
applicable LIBOR Note, LIBOR will be determined as if LIBOR Telerate had
been specified.
(iii) If (a) in the case where paragraph (i) above applies, no rate
appears on the Telerate Page 3750 or (b) in the case where paragraph (ii)
above applies, fewer than two offered rates appear on the Reuters Screen
LIBO Page, the Calculation Agent will request the principal London offices
of each of four major banks in the London interbank market, as selected by
the Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in United States dollars for the period of the
specified Index Maturity to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such Interest Determination Date
and in a principal amount equal to an amount of not less than U.S. $1
million that is representative of a single transaction in such market at
such time. If at least two such quotations are provided, LIBOR will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of such Interest Determination Date will be the
arithmetic mean of rates quoted by three major banks in The City of New
York selected by the Calculation Agent (after consultation with the
Corporation) at approximately 11:00 A.M., New York City time, on such
Interest Determination Date for loans in U.S. dollars to leading European
banks, for the period of the specified Index Maturity and in a principal
amount of not less than U.S. $1 million that is representative of a single
transaction in such market at such time; provided however, that if fewer
than three banks selected as aforesaid by the Calculation Agent are quoting
rates as mentioned in this sentence, "LIBOR" for such Interest Reset Period
will be the same as LIBOR for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable on the LIBOR Notes for which LIBOR is being determined
shall be the Initial Interest Rate).
Prime Rate Notes
Prime Rate Notes will bear interest at the interest rate (calculated with
reference to the Prime Rate and the Spread and/or Spread Multiplier, if any, and
subject to the Minimum Interest Rate and the Maximum Interest Rate, if any)
specified in the Prime Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, "Prime
Rate" means, with respect to any Interest Determination Date, the rate set forth
H.15(519) for such date opposite the caption "Bank Prime Loan." If such rate is
not yet published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Prime Rate for such Interest
Determination Date will be the arithmetic mean of the rates of interest publicly
announced by each bank named on the Reuters Screen NYMF Page (as defined below)
as such bank's prime rate or base lending rate as in effect for such Interest
Determination Date as quoted on the Reuters Screen NYMF Page on such Interest
Determination Date, or, if fewer than four such rates appear on the Reuters
Screen NYMF Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number of
days in the year divided by 360 as of the close of business on such Interest
Determination Date by at least two of the three major money center banks in The
City of New York selected by the Calculation Agent from which quotations are
requested. If fewer than two quotations are provided, the Prime Rate shall be
calculated by the Calculation Agent and shall be determined as the arithmetic
mean on the basis of the prime rates in The City of New York by the appropriate
number of substitute banks or trust companies organized and doing business under
the laws of the United States, or any State thereof, in each case having total
equity capital of at least U.S. $500 million and being subject to supervision or
examination by federal or state authority, selected by the Calculation Agent to
quote such rate or rates. "Reuters Screen NYMF Page" means the display
designated as Page "NYMF" on the Reuters Monitor Money Rates Services (or such
other page as may replace the NYMF Page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks).
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If in any month or two consecutive months the Prime Rate is not published
in H.15(519) and the banks or trust companies selected as aforesaid are not
quoting as mentioned in the preceding paragraph, the "Prime Rate" for such
Interest Reset Period will be the same as the Prime Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest payable on the Prime Rate Notes for which the Prime Rate is
being determined shall be the Initial Interest Rate). If this failure continues
over three or more consecutive months, the Prime Rate for each succeeding
Interest Determination Date until the maturity or redemption or repayment of
such Prime Rate Notes or, if earlier, until this failure ceases, shall be LIBOR
determined as if such Prime Rate Notes were LIBOR Notes with an Index Maturity
specified in the applicable Pricing Supplement, and the Spread, if any, shall be
the number of basis points specified in the applicable Pricing Supplement as the
"Alternative Rate Event Spread."
Treasury Rate Notes
Treasury Rate Notes will bear interest at the interest rate (calculated
with reference to the Treasury Rate and the Spread and/or Spread Multiplier, if
any, and subject to the Minimum Interest Rate and the Maximum Interest Rate, if
any) specified in the Treasury Rate Notes and in the applicable Pricing
Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Treasury Rate" means, with respect to any Interest Determination Date, the rate
for the auction held on such date of direct obligations of the United States
("Treasury Bills") having the Index Maturity designated in the applicable
Pricing Supplement, as published in H.15(519) under the heading "Treasury
Bills -- auction average (investment)" or, if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination Date
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury. In the event that the results of the auction
of Treasury Bills having the Index Maturity designated in the applicable Pricing
Supplement are not published or reported are provided above by 3:00 P.M., New
York City time, on such Calculation Date or if no such auction is held on such
Interest Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) calculated using the arithmetic mean of the secondary
market bid rates, as of approximately 3:30 P.M., New York City time, on such
Interest Determination Date, of three leading primary United States government
securities dealers in the City of New York (which may include one or more of the
Agents) selected by the Calculation Agent for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity designated in the applicable
Pricing Supplement; provided, however, that if the dealers selected as aforesaid
by the Calculation Agent are not quoting bid rates as mentioned in this
sentence, the Treasury Rate for the applicable period will be the same as the
Treasury Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable on the Treasury
Rate Notes for which the Treasury Rate is being determined shall be the Initial
Interest Rate).
CMT Rate Notes
CMT Rate Notes will bear interest at the interest rate (calculated with
reference to the CMT Rate and the Spread and/or Spread Multiplier, if any, and
subject to the Minimum Interest Rate and Maximum Interest Rate, if any),
specified on the face of the CMT Rate Note and in the applicable Pricing
Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, "CMT Rate"
means, with respect to any Interest Determinate Date, the rate displayed on the
Designated CMT Telerate Page under the caption
" . . . Treasury Constant Maturities. . . . Federal Reserve Board Release
H.15 . . . Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the rate
on such Interest Determination Date and (ii) if the Designated CMT Telerate Page
is 7052, the rate for the week, or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs. If
such rate is no longer displayed on the relevant page, or if not displayed by
3:00 P.M., New York City time, on the related Interest Calculation Date, then
the CMT Rate for such Interest Determination Date will be such Treasury Constant
Maturity rate for
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the Designated CMT Maturity Index as published in the relevant H.15(519). If
such rate is no longer published, or if not published by 3:00 P.M., New York
City time, on the related Interest Calculation Date, then the CMT Rate for such
Interest Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the Interest Determination Date with respect
to such Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Interest Calculation Date, then the CMT Rate for the
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point) of the secondary market closing offer
side prices as of approximately 3:30 P.M., New York City time, on the Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a "Reference
Dealer") in The City of New York (which may include one or more of the Agents)
selected by the Calculation Agent (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Note") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent cannot obtain three such Treasury Note quotations, the
CMT Rate for such Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point) of the
secondary market offer side prices as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date of three Reference Dealers in The City
of New York (from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point) of the offer prices obtained and neither the highest nor lowest of such
quotes will be eliminated; provided, however, that if fewer than three Reference
Dealers in the City of New York (which may include one or more of the Agents)
selected by the Calculation Agent are quoting as described herein, the CMT Rate
will be the CMT Rate in effect on such Interest Determination Date. If two
Treasury Notes with an original maturity as described in the second preceding
sentence have remaining terms to maturity equally close to the Designated CMT
Maturity Index, the quotes for the Treasury Note with the shorter remaining term
to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated in the applicable Pricing Supplement (or any
other page as may replace such page on the service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified in the applicable Pricing Supplement, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable Pricing Supplement as the Index Maturity with
respect to which the CMT Rate will be calculated. If no such maturity is
specified in the applicable Pricing Supplement, the Designated CMT Maturity
Index shall be 2 years.
11th District Cost of Funds Rate Notes
Each 11th District Cost of Funds Rate Note will bear interest at the
interest rate (calculated with reference to the 11th District Cost of Funds Rate
and the Spread and/or Spread Multiplier, if any and subject to the Minimum
Interest Rate and Maximum Interest Rate, if any) specified in the applicable
11th District Cost of Funds Rate Notes.
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Unless otherwise indicated in the applicable 11th District Cost of Funds
Rate Note, "11th District Cost of Funds Rate" means, with respect to any
Interest Determination Date, the rate equal to the monthly weighted average cost
of funds for the calendar month immediately preceding the month in which such
Interest Determination Date falls, as set forth under the caption "11th
District" on the Telerate Page 7058 as of 11 A.M., San Francisco Time, on such
Interest Determination Date. If such rate does not appear on the Telerate 7058
on any related Interest Determination Date, the 11th District Cost of Funds Rate
means the rate equal to the monthly 11th District Cost of Funds Index (the "11th
District Cost of Funds Index") normally published by the Federal Home Loan Bank
of San Francisco (the "FHLB of San Francisco") during the month immediately
preceding the Interest Reset Date to which such Interest Determination Date
applies.
The 11th District Cost of Funds Index is normally published by the FHLB of
San Francisco on the last day on which the FHLB of San Francisco is open for
business in each month and represents the monthly weighted average cost of funds
for savings institutions in the 11th District (Arizona, California and Nevada)
of the Federal Home Loan Bank System for the month preceding the month in which
the 11th District Cost of Funds Index is published. Currently, the 11th District
Cost of Funds Index is computed by the FHLB of San Francisco for each month by
dividing the cost of funds (interest paid during the month by 11th District
savings institutions on savings, advances and other borrowings) by the average
of the total amount of those funds outstanding at the end of that month and the
prior month and annualizing and adjusting the result to reflect the actual
number of days in the particular month. If necessary, before these calculations
are made, the component figures are adjusted by the FHLB of San Francisco to
neutralize the effect of events such as member institutions leaving the 11th
District or acquiring institutions outside the 11th District. Receipt by mail of
Information Bulletins announcing 11th District Cost of Funds Index changes may
be arranged by contacting the FHLB of San Francisco.
If the FHLB of San Francisco shall fail in any month to publish the 11th
District Cost of Funds Index (each such failure being referred to herein as an
"Alternative Rate Event"), then the 11th District Cost of Funds Rate for the
Interest Determination Date after the Alternate Rate Event shall be calculated
on the basis of the 11th District Cost of Funds Index most recently published
prior to such Interest Determination Date. If an Alternate Rate Event occurs in
the month immediately following a month in which a prior Alternate Rate Event
occurred, then the 11th District Cost of Funds Rate for the Interest
Determination Date immediately following the second Alternate Rate Event shall
be calculated on the basis of the 11th District Cost of Funds Index most
recently published prior to such Interest Determination Date and, thereafter,
the 11th District Cost of Funds Rate for each succeeding Interest Determination
Date shall be LIBOR, determined as though the Interest Rate Basis were LIBOR and
the Spread shall be plus or minus the number of basis points specified in the
applicable 11th District Cost of Funds Rate Note at the "Alternate Rate Event
Spread," if any.
In determining that the FHLB of San Francisco has failed in any month to
publish the 11th District Cost of Funds Index, the Calculation Agent may rely
conclusively on any written advice from the FHLB of San Francisco to such
effect.
INDEXED NOTES
The Notes may be issued, from time to time, as Notes of which the principal
amount payable on the Stated Maturity and/or on which the amount of interest
payable on an Interest Payment Date and/or any premium payable will be
determined by reference to prices, changes in prices, or differences between
prices, of securities, currencies, currency units, composite currencies,
intangibles, goods, articles, or commodities or other objective price, economic
or other measures (the "Indexed Notes"), as indicated in the applicable Pricing
Supplement. Holders of Indexed Notes may receive a principal amount at maturity
that is greater than or less than the face amount of such Notes depending upon
the fluctuation of the relative value, rate or price of the specified index.
Specific information pertaining to the method for determining the principal
amount payable at maturity, a historical comparison of the relative value, rate
or price of the specified index and the face amount of the Indexed Note and
certain additional United States federal tax and other relevant considerations
will be described in the applicable Pricing Supplement.
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EXTENSION OF MATURITY
The Pricing Supplement relating to each Fixed Rate Note (other than an
Amortizing Note) will indicate whether the Corporation has the option to extend
the maturity of such Fixed Rate Note for one or more periods specified in the
applicable Pricing Supplement (each an "Extension Period") up to but not beyond
the date (the "Final Maturity Date") set forth in such Pricing Supplement. If
the Corporation has such option with respect to any such Fixed Rate Note (an
"Extendible Note"), the following procedures will apply, unless modified as set
forth in the applicable Pricing Supplement.
The Corporation may exercise such option with respect to an Extendible Note
by notifying the Paying Agent of such exercise at least 50 but not more than 60
calendar days prior to the maturity date originally in effect with respect to
such Note (the "Original Maturity Date") or, if the maturity date of such Note
has already been extended, prior to the maturity date then in effect (an
"Extended Maturity Date"). No later than 40 calendar days prior to the Original
Maturity Date or an Extended Maturity Date, as the case may be (each, a
"Maturity Date"), the Paying Agent will mail to the holder of such Note a notice
(the "Extension Notice") relating to such Extension Period, by first class mail,
postage prepaid, setting forth (a) the election of the Corporation to extend the
maturity of such Note; (b) the new Extended Maturity Date; (c) the interest rate
applicable to the Extension Period; and (d) the provisions, if any, for
redemption during the Extension Period, including the date or dates on which,
the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by the Paying
Agent of an Extension Notice to the holder of an Extendible Note, the maturity
of such Note shall be extended automatically, and, except as modified by the
Extension Notice and as described in the next paragraph, such Note will have the
same terms it had prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M., New York City
time, on the twentieth calendar day prior to the Maturity Date then in effect
for an Extendible Note (or, if such day is not a Business Day, not later than
10:00 A.M., New York City time, on the immediately succeeding Business Day), the
Corporation 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 Paying Agent to send notice of such higher interest rate to the
holder of such Note by first class mail, postage prepaid, or by such other means
as shall be agreed between the Corporation and the Paying Agent. Such notice
shall be irrevocable. All Extendible Notes with respect to which the Maturity
Date is extended in accordance with an Extension Notice will bear such higher
interest rate for the Extension Period, whether or not tendered for repayment.
If the Corporation elects to extend the maturity of an Extendible Note, the
holder of such Note will have the option to require the Corporation to repay
such Note on the Maturity Date then in effect at a price equal to the principal
amount thereof plus any accrued and unpaid interest to such date. In order for
an Extendible Note to be repaid on such Maturity Date, the holder thereof must
follow the procedures set forth below under "Repayment at the Noteholders'
Option" for optional repayment, except that the period for delivery of such Note
or notification to the Paying Agent shall be at least 25 but not more than 35
calendar days prior to the Maturity Date then in effect and except that a holder
who has tendered an Extendible Note for repayment pursuant to an Extension
Notice may, by written notice to the Paying Agent, revoke any such tender for
repayment until 3:00 P.M., New York City time, on the tenth calendar day prior
to the Maturity Date then in effect (or, if such day is not a Business Day,
until 3:00 P.M., New York City time, on the next succeeding Business Day).
RENEWABLE NOTES
The Corporation may also issue from time to time variable rate renewable
notes (the "Renewable Notes") that will bear interest at the interest rate
(calculated with reference to a Base Rate and the Spread and/or Spread
Multiplier, if any, and subject to the Minimum Interest Rate and the Maximum
Interest Rate, if any) specified in the Renewable Notes and in the applicable
Pricing Supplement.
The Renewable Notes will mature on an Interest Payment Date as specified in
the applicable Pricing Supplement (the "Initial Maturity Date"), unless the
maturity of all or any portion of the principal amount thereof is extended in
accordance with the procedures described below. On the Interest Payment Dates in
June and December in each year (unless different Interest Payment Dates are
specified in the applicable
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Pricing Supplement) (each such Interest Payment Date, an "Election Date"), the
maturity of the Renewable Notes will be extended to the Interest Payment Date
occurring twelve months after such Election Date, unless the holder thereof
elects to terminate the automatic extension of the maturity of the Renewable
Notes or of any portion thereof having a principal amount of $100,000 or any
multiple of $100,000 in excess thereof by delivering a notice to such effect to
the Paying Agent not less than nor more than a number of days to be specified in
the applicable Pricing Supplement prior to such Election Date. Such option may
be exercised with respect to less than the entire principal amount of the
Renewable Notes; provided that the principal amount for which such option is not
exercised is at least $100,000 or any larger amount that is an integral multiple
of $100,000. Notwithstanding the foregoing, the maturity of the Renewable Notes
may not be extended beyond the Final Maturity Date, as specified in the
applicable Pricing Supplement (the "Final Maturity Date"). If the holder elects
to terminate the automatic extension of the maturity of any portion of the
principal amount of the Renewable Notes and such election is not revoked as
described below, such portion will become due and payable on the Interest
Payment Date falling six months (unless another period is specified in the
applicable Pricing Supplement) after the Election Date prior to which the holder
made such election.
An election to terminate the automatic extension of maturity may be revoked
as to any portion of the Renewable Notes having a principal amount of $100,000
or any multiple of $100,000 in excess thereof by delivering a notice to such
effect to the Paying Agent or any day following the effective date of the
election to terminate the automatic extension of maturity and prior to the date
15 calendar days before the date on which such portion would otherwise mature.
Such a revocation may be made for less than the entire principal amount of the
Renewable Notes for which the automatic extension of maturity has been
terminated; provided that the principal amount of the Renewable Notes for which
the automatic extension of maturity has been terminated and for which such a
revocation has not been made is at least $100,000 or any larger amount that is
an integral multiple of $100,000. Notwithstanding the foregoing, a revocation
may not be made during the period from and including a Record Date to but
excluding the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the maturity of the
Renewable Notes, if not revoked as described above by the holder making the
election or any subsequent Holder, will be binding upon such subsequent holder.
The Renewable Notes may be redeemed in whole or in part at the option of
the Corporation on the Interest Payment Date for the year specified in the
applicable Pricing Supplement, commencing with the Interest Payment Date
specified in the applicable Pricing Supplement, at a redemption price as stated
in the applicable Pricing Supplement, together with accrued and unpaid interest
to the date of redemption. Notwithstanding anything to the contrary in this
Prospectus Supplement, notice of redemption will be provided by mailing a notice
of such redemption to each holder by first class mail, postage prepaid, at least
180 calendar days prior to the date fixed for redemption.
BOOK-ENTRY SYSTEM
Unless otherwise indicated in the applicable Pricing Supplement, upon
issuance, all Fixed Rate Book-Entry Notes having the same Issue Date, interest
rate, if any, amortization schedule, if any, maturity date and other terms, if
any, will be represented by one or more Global Securities, and all Floating Rate
Book-Entry Notes having the same Issue Date, Initial Interest Rate, Base Rate,
Interest Reset Period, Interest Payment Dates, Index Maturity, Spread and/or
Spread Multiplier, if any, Minimum Interest Rate, if any, Maximum Interest Rate,
if any, maturity date and other terms, if any, will be represented by one or
more Global Securities. Each Global Security representing Book-Entry Notes will
be deposited with, or on behalf of, the Depository, and registered in the name
of a nominee of the Depository. Certificated Notes will not be exchangeable for
Book-Entry Notes. Book-Entry Notes will not be exchangeable for Certificated
Notes and will not otherwise be issuable as Certificated Notes, except under the
circumstances described in the Prospectus under "Description of Debt
Securities -- Book-Entry Procedures."
Settlement for the Book-Entry Notes will be made in immediately available
funds. The Book-Entry Notes will trade in the Depositary's Same-Day Funds
Settlement System until maturity, and therefore the Depositary will require
secondary trading activity in the Book-Entry Notes to be settled in immediately
available funds. Secondary trading in long-term notes and debentures of
corporate issuers is generally settled
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in clearing-house or next-day funds. No assurance can be given as to the effect,
if any, of settlement in immediately available funds on trading activity in the
Book-Entry Notes.
A further description of the Depository's procedures with respect to Global
Securities representing Book-Entry Notes is set forth in the accompanying
Prospectus under "Description of Debt Securities -- Book-Entry Procedures." The
Depository has confirmed to the Corporation, each Agent and the Trustee that it
intends to follow such procedures.
OPTIONAL REDEMPTION
Unless otherwise indicated in the applicable Pricing Supplement, Notes may
not be redeemed by the Corporation prior to maturity. If so specified in the
applicable Pricing Supplement, the Notes will be redeemable prior to maturity at
the option of the Corporation on the terms specified therein. Unless otherwise
indicated in the applicable Pricing Supplement, notice of redemption will be
provided by mailing a notice of such redemption to each holder by first class
mail, postage prepaid, at least 30 days and not more than 60 calendar days prior
to the date fixed for redemption to the respective address of each holder as
that address appears upon the books maintained by the Paying Agent.
REPAYMENT AT THE NOTEHOLDERS' OPTION
Unless otherwise indicated in the applicable Pricing Supplement, Notes may
not be repaid at the option of the holders thereof prior to maturity. If so
specified in the applicable Pricing Supplement, a Note will be repayable at the
option of the holder on a date or dates specified prior to its maturity date
and, unless otherwise specified in such Pricing Supplement, at the Repayment
Price together with accrued interest to the Repayment Date, each as specified in
the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, in order
for such a Note to be repaid, the Paying Agent must receive at least 30 days but
not more than 45 calendar days prior to the Repayment Date the Note with the
form entitled "Option to Elect Repayment" on the reverse of the Note duly
completed. Except in the case of Extendible Notes, and unless otherwise
specified in the applicable Pricing Supplement, exercise of the repayment option
by the holder of a Note will be irrevocable. On any Repayment Date with respect
to any Note, such Note will be repayable in whole or in part in increments of
$1,000 (provided that any remaining principal amount of such Note will not be
less than the minimum authorized denomination of such Note) at the option of the
holder thereof at a Repayment Price specified in the applicable Pricing
Supplement together with interest accrued thereon to the Repayment Date.
If a Note is represented by a Global Security, the Depository's nominee
will be the holder of such Note and therefore will be the only entity that can
exercise a right to repayment. In order to ensure that the Depository's nominee
will timely exercise a right to repayment with respect to a particular Note, the
beneficial owner of such Note must instruct the broker or other direct or
indirect participant through which it holds an interest in such Note to notify
the Depository of its desire to exercise a right to repayment. Different firms
have different cut-off times for accepting instructions from their customers
and, accordingly, each beneficial owner should consult the broker or other
direct or indirect participant through which it holds an interest in a Note in
order to ascertain the cut-off time by which such an instruction must be given
in order for timely notice to be delivered to the Depository.
REPURCHASE
The Corporation may purchase Notes at any price in the open market or
otherwise. Notes so purchased by the Corporation may, at the discretion of the
Corporation, be held or resold or surrendered to the relevant Trustee for
cancellation.
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FOREIGN CURRENCY RISKS
EXCHANGE RATE AND EXCHANGE CONTROLS
Any investment in Notes that are denominated in, or the payment of which is
related to the value of, a Specified Currency other than U.S. dollars entails
significant risks that are not associated with a similar investment in a
security denominated in U.S. dollars. Such risks include, without limitation,
the possibility of significant changes in rates of exchange between the U.S.
dollar and the various foreign currencies (or composite currencies or currency
units) and the possibility of the imposition or modification of exchange
controls by either the U.S. or foreign governments. Such risks generally depend
on economic and political events over which the Corporation has no control. In
recent years, rates of exchange between U.S. dollars and certain foreign
currencies have been highly volatile and such volatility may be expected to
continue in the future. Fluctuations in any particular exchange rate that have
occurred in the past are not necessarily indicative, however, of fluctuations in
such rate that may occur during the term of any Note. Depreciation against the
U.S. dollar of the currency in which a Note is payable would result in a
decrease in the effective yield of such Note below its coupon rate and, in
certain circumstances, could result in a loss to the investor on a U.S. dollar
basis. In addition, depending on the specific terms of a currency linked Note,
changes in exchange rates relating to any of the currencies involved may result
in a decrease in its effective yield and, in certain circumstances, could result
in a loss of all or a substantial portion of the principal of a Note to the
investor.
THIS PROSPECTUS SUPPLEMENT, THE ATTACHED PROSPECTUS AND ANY PRICING
SUPPLEMENT DO NOT DESCRIBE ALL THE RISKS OF AN INVESTMENT IN NOTES DENOMINATED
IN, OR THE PAYMENT OF WHICH IS RELATED TO THE VALUE OF, A FOREIGN CURRENCY OR A
COMPOSITE CURRENCY AND THE CORPORATION DISCLAIMS ANY RESPONSIBILITY TO ADVISE
PROSPECTIVE PURCHASERS OF SUCH RISKS AS THEY EXIST AT THE DATE OF THIS
PROSPECTUS SUPPLEMENT OR AS SUCH RISKS MAY CHANGE FROM TIME TO TIME. PROSPECTIVE
INVESTORS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS
ENTAILED BY AN INVESTMENT IN NOTES DENOMINATED IN, OR THE PAYMENT OF WHICH IS
RELATED TO THE VALUE OF, SPECIFIED CURRENCIES OTHER THAN U.S. DOLLARS. SUCH
NOTES ARE NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED
WITH RESPECT TO FOREIGN CURRENCY TRANSACTIONS.
Except as set forth below under "United States Tax
Considerations -- Non-U.S. Holders," the information set forth in this
Prospectus Supplement is directed to prospective purchasers who are United
States residents, and the Corporation disclaims any responsibility to advise
prospective purchasers who are residents of countries other than the United
States with respect to any matters that may affect the purchase, holding or
receipt of payments of principal, premium, if any, and interest on the Notes.
Such persons should consult their own counsel with regard to such matters.
Governments have imposed from time to time, and may in the future impose,
exchange controls which could affect exchange rates as well as the availability
of a specified foreign currency at the time of payment of principal of, premium,
if any, or interest on a Note. Even if there are no actual exchange controls, it
is possible that the Specified Currency for any particular Note not denominated
in U.S. dollars would not be available when payments on such Note are due. In
that event, the Corporation would make required payments in U.S. dollars on the
basis of the Market Exchange Rate on the date of such payment, or if such rate
of exchange is not then available, on the basis of the Market Exchange Rate as
of the most recent practicable date. See "Description of Notes -- Payment
Currency."
With respect to any Note denominated in, or the payment of which is related
to the value of, a foreign currency or currency unit, the applicable Pricing
Supplement will include information with respect to applicable current exchange
controls, if any, and historic exchange rate information on such currency or
currency unit. The information contained therein shall constitute a part of this
Prospectus Supplement and is furnished as a matter of information only and
should not be regarded as indicative of the range of or trends in fluctuations
in currency exchange rates that may occur in the future.
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GOVERNING LAW AND JUDGMENTS
The Notes will be governed by and construed in accordance with the laws of
the State of New York. In the event an action based on Notes denominated in a
Specified Currency other than U.S. dollars were commenced in a Federal or State
court in the United States, it is likely that such court would grant judgment
relating to the Notes only in U.S. dollars. The date used to determine the rate
of conversion of a Specified Currency into United States dollars will depend
upon various factors, including which court renders the judgment. In the event
of an action based on Notes denominated in a Specified Currency other than U.S.
dollars in a state court in the State of New York, such court would be required
to render such judgment in the Specified Currency in which the Note is
denominated, and such judgment would be converted into U.S. dollars at the
exchange rate prevailing on the date of entry of the judgment.
UNITED STATES TAX CONSIDERATIONS
In the opinion of Thompson, Hine and Flory, special tax counsel to the
Corporation, the following summary accurately describes certain material United
States federal income tax statutory and regulatory provisions which may pertain
to the purchase, ownership and disposition of Notes as of the date hereof. This
summary is based on laws, regulations, rulings and decisions now in effect (or,
in the case of certain regulations, in proposed form) all of which are subject
to change (including changes in effective dates) or possible differing
interpretations, which could result in federal income tax consequences different
from those discussed below. It deals only with Notes held as capital assets and
does not purport to deal with persons in special tax situations, such as
financial institutions, insurance companies, regulated investment companies,
dealers in securities or currencies, persons holding Notes as a hedge against
currency risks or as a position in a "straddle" for tax purposes, or persons
whose functional currency is not the United States dollar. It does not deal with
Notes other than Notes in the registered form. The federal income tax
consequences of purchasing, holding or disposing of Amortizing Notes, Extendible
Notes, Renewable Notes, Indexed Notes, Foreign Currency Notes (other than the
Single Foreign Currency Notes) and Floating Rate Notes that provide for one Base
Rate followed by a different Base Rate, a Base Rate followed by a fixed rate, or
a fixed rate followed by a Base Rate will be set out in the applicable pricing
supplement. It also does not deal with holders other than original purchasers.
Additional tax considerations or consequences may result from the particular
terms established in any Pricing Supplement or in any Note. This opinion is
limited to the present laws of the United States, and Thompson Hine and Flory
assumes no obligation to revise or supplement this opinion with respect to Notes
issued pursuant to this Registration Statement in the event the present laws
referred to above change by legislative action, judicial decision, or otherwise,
or the facts as they presently exist change to the extent any such changes occur
after the date of issue. PERSONS CONSIDERING THE PURCHASE, OWNERSHIP, OR
DISPOSITION OF THE NOTES SHOULD CONSULT THEIR OWN TAX ADVISORS CONCERNING THE
APPLICATION OF UNITED STATES FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR
SITUATIONS AS WELL AS ANY CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE NOTES ARISING UNDER THE LAWS OF ANY OTHER TAXING
JURISDICTION.
As used herein, a "U.S. Holder" of a Note means a beneficial owner of a
Note that is for United States federal income tax purposes (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
created or organized in or under the laws of the United States, any state, or of
any political subdivision thereof, or (iii) an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source. As used herein, the term "Non-U.S. Holder" means a holder of a Note that
is not a U.S. Holder.
"Single Foreign Currency Note" means a Note on which all payments a holder
is entitled to receive are denominated in or determined by reference to the
value of a single Foreign Currency. "Foreign Currency" means a currency or
currency unit, other than a hyperinflationary currency or the U.S. dollar.
PAYMENTS OF INTEREST
Payments of interest on a Note generally will be taxable to a U.S. Holder
as ordinary interest income at the time such payments are accrued or received in
accordance with the U.S. Holder's method of accounting for tax purposes.
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ORIGINAL ISSUE DISCOUNT AND ACQUISITION DISCOUNT
Notes with a term greater than one year may be issued with original issue
discount for United States federal income tax purposes (a "Discount Note").
Generally, original issue discount will arise if the stated redemption price at
maturity (generally, the principal amount) of a Note exceeds its issue price by
more than a de minimis amount or if a Note has certain interest payment
characteristics (e.g., interest holidays, interest payable in additional notes,
stepped interest rates or interest rates based upon multiple indices). The issue
price of Discount Notes that are issued for cash will be the first price at
which a substantial amount of the Discount Notes in such issue are sold. If a
Note is issued with original issue discount, a holder of the Note will be
required to include amounts in gross income for United States federal income tax
purposes on an accrual basis using the constant yield to maturity method and, as
a result, a holder may be required to include such amount in income in advance
of receipt of the cash payments to which such amounts are attributable. Any
amounts included in income as original issue discount with respect to a Discount
Note will increase a U.S. Holder's adjusted tax basis in the Discount Note.
In addition, Floating Rate Notes may be subject to rules that differ from
these general rules. Prospective investors should consult their own tax advisors
with respect to the tax consequences of any prospective purchase of Floating
Rate Notes. The following summary is based upon Treasury Regulations which were
published in the Federal Register on February 2, 1994 and which became effective
as Final Treasury Regulations on April 4, 1994 (the "OID Regulations"), and
Proposed Treasury Regulations published in the Federal Register on December 16,
1994 (the "Proposed Regulations").
In general, a Note will be treated as a "variable rate debt instrument" for
purposes of the OID Regulations if the Note is issued for an amount that does
not exceed the total noncontingent principal payments by more than an amount
equal to the lesser of (i) 0.015 multiplied by the product of the total
noncontingent principal and the number of complete years to maturity from the
issue date; or (ii) 15% of the total noncontingent principal payments. In
addition, to be a variable rate debt instrument, the Note must bear stated
interest (compounded or paid at least annually) at (i) one or more qualified
floating rates, (ii) a single fixed rate and one or more qualified floating
rates, (iii) a single objective rate or (iv) a single fixed rate and a single
objective rate that is a "qualified inverse floating rate". A qualified floating
rate or objective rate must be set at a "current value" of that rate; a "current
value" is the value of the variable rate on any day that is no earlier than
three months prior to the first day on which that value is in effect and no
later than one year following that day. A "qualified floating rate" generally is
a rate the variations in the value of which can reasonably be expected to
measure contemporaneous variations in the cost of newly borrowed funds in the
currency in which the Note is denominated. A qualified floating rate may be
multiplied by a fixed, positive multiple not exceeding 1.35, which may be
increased or decreased by a fixed rate. Certain combinations of rates constitute
a single qualified floating rate, including (i) interest stated at a fixed rate
for an initial period of less than one year followed by a qualified floating
rate if the value of the floating rate at the issue date is intended to
approximate the fixed rate, and (ii) two or more qualified floating rates that
can reasonably be expected to have approximately the same values throughout the
term of the debt instrument. A combination of such rates is conclusively
presumed to be a single qualified floating rate if the values of all rates on
the issue date are within 0.25 percentage points of each other. A variable rate
that is subject to an interest rate cap, floor, governor or similar restriction
on rate adjustment may be a qualified floating rate only if such restriction is
fixed throughout the term of the debt instrument, or is not reasonably expected
as of the issue date to cause the yield on the debt instrument to differ
significantly from its expected yield absent the restriction. An "objective
rate" is a rate (other than a qualified floating rate) that is determined using
a single fixed formula and that is based on: (i) one or more qualified floating
rates, (ii) one or more rates each of which would be a qualified floating rate
for a debt obligation denominated in a currency other than currency in which the
debt instrument is denominated, (iii) the yield or change in the price of one or
more items of actively traded personal property, other than the stock or debt of
the issuer or a related party, or (iv) a combination of the rates described in
(i)-(iii) herein. The Proposed Regulations would alter the definition of
"objective rate" to a rate (other than a qualified floating rate) that is
determined by using a single fixed formula and that is based on objective
financial or economic information (other than a rate based on information that
is within the control of the issuer (or related party) or that is unique to the
circumstances of the issuer (or related party), such as dividends, profits or
the value of the issuer's stock); such change is proposed to be effective for
debt
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<PAGE> 26
instruments issued on or after the date that is 60 days after final regulations
are published in the Federal Register. The Internal Revenue Service (the "IRS")
may designate other variable rates that will be treated as objective rates.
However, a variable rate is not an objective rate if it is reasonably expected
that the average value of the rate during the first half of the debt
instrument's term will differ significantly from the average value of such rate
during the final half of its term. A "qualified inverse floating rate" is a rate
that is equal to a fixed rate minus a qualified floating rate and the variations
in which can reasonably be expected to inversely reflect contemporaneous
variations in the cost of newly borrowed funds, disregarding certain
restrictions on such rate such as caps, floors or governors. Finally, the
Proposed Regulations specify that a variable rate debt instrument may not
provide for any principal payments that are contingent. A payment is not
considered contingent if, as of the issue date, the contingency is either remote
or incidental.
In general, the rules for determining the amount and accrual of original
issue discount and qualified stated interest on a variable rate debt instrument
convert the debt instrument into a fixed rate debt instrument and then apply the
general original issue discount rules to the debt instrument. If a Note bears
interest that is unconditionally payable at least annually at a single qualified
floating rate or an objective rate, all stated interest is qualified stated
interest. In the case of a single qualified floating rate or a qualified inverse
floating rate, the accrual of original issue discount is determined by assuming
that the rate is fixed upon issuance at the initial value of the interest rate.
In the case of an objective interest rate (other than a qualified inverse
floating rate), the accrual of original issue discount is calculated by assuming
that the Note bears interest at a fixed rate that reflects the yield that is
reasonably expected for the Note. If a Note bears interest at a variable rate
other than a single qualified floating rate or objective rate, the amount and
accrual of original issue discount are generally determined by converting the
variable rate debt instrument into a fixed rate debt instrument as generally
described above, applying the general original issue discount rules, and then
making appropriate adjustments for actual interest rates under the Note. The
Proposed Regulations clarify that the qualified stated interest allocable to an
accrual period is increased (or decreased) if the interest actually paid during
an accrual period exceeds (or is less than) the interest assumed to be paid
during the accrual period; such clarification is proposed to be effective for
debt instruments issued on or after April 4, 1994.
Notes that provide for a variable rate of interest but that do not qualify
as variable rate debt instruments are contingent payment debt instruments. The
tax treatment for contingent payment debt instruments is not entirely clear
under current law. The Proposed Regulations (proposed to be effective for debt
instruments issued on or after the date that is 60 days after final regulations
are published in the Federal Register) adopt the "noncontingent bond method" for
contingent payment debt instruments that are issued for cash or publicly traded
property. Under the noncontingent bond method, a projected payment schedule is
determined for a debt instrument as of the issue date, and interest accrues on
the debt instrument based on this schedule. The projected payment schedule
includes all noncontingent payments as well as a projected amount for each
contingent payment. Appropriate adjustments are made to account for any
difference between the projected amount of a contingent payment and the actual
amount of the payment. The projected amounts are, in effect, treated as fixed,
and interest accrual is required based on these projected amounts as imputed
interest. Thus, the noncontingent bond method may result in recognition of
income prior to the receipt of cash. Prospective investors should consult their
own tax advisors with respect to the application of the contingent payment debt
instrument provisions to Floating Rate Notes.
The OID Regulations provide special rules for Notes subject to
contingencies, including optional redemption. Notes which may be redeemed in
whole or in part prior to their Stated Maturity will be treated as having a
maturity date for federal income tax purposes on such redemption date if such
redemption would result in a lower yield to maturity in the case of a redemption
at the issuer's option or a higher yield to maturity in the case of a redemption
at the holder's option. Notice will be given in the applicable Pricing
Supplement when the Corporation determines that a particular Note will be deemed
to have a maturity date for federal income tax purposes prior to its Stated
Maturity. Investors intending to purchase Notes with such features should
consult their own tax advisors, since the original issue discount consequences
will depend, in part, on the particular terms and features of such Notes.
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<PAGE> 27
SHORT-TERM NOTES
Notes that have a fixed maturity of one year or less ("Short-Term Notes")
generally will be deemed to have been issued with original issue discount
(generally, the excess of the Short-Term Note's principal amount, plus all
interest payable on the Note, over the Note's purchase price). In general, an
individual or other cash method U.S. Holder is not required to accrue original
issue discount on a Short-Term Note unless the holder elects to do so. If such
an election is not made, any gain recognized by the U.S. Holder on a taxable
disposition (including the maturity) of a Short-Term Note will be ordinary
income to the extent of the original issue discount accrued on a straight-line
basis, or upon election on a constant yield method (based on daily compounding)
through the date of sale or maturity, and a portion of the deductions otherwise
allowable to the U.S. Holder for interest on borrowings allocable to a
Short-Term Note will be deferred until a corresponding amount of income is
realized. U.S. Holders who report income for federal income tax purposes under
the accrual method, and certain other holders, including banks and dealers in
securities, are required to accrue original issue discount on a Short-Term Note
on a straight line basis unless an election is made to accrue the original issue
discount under a constant yield method (based on daily compounding).
MARKET DISCOUNT
If a U.S. Holder purchases a Note, other than a Discount Note, for an
amount that is less than its issue price or, in the case of a Discount Note, for
an amount that is less than its adjusted issue price as of the purchase date,
the amount of such difference will be treated as "market discount" for United
Stated federal income tax purposes, unless such difference is less than a
specified de minimis amount. Under the market discount rules, a U.S. Holder will
be required to treat any gain in the sale, exchange, retirement or other taxable
disposition of a Note as ordinary income to the extent that any market discount
has accrued with respect to such Note and was not previously included in income
by the U.S. Holder (pursuant to an election by the U.S. Holder to include such
market discount in income as it accrues) at the time of such disposition. Market
discount is accrued on a straight line basis unless the U.S. Holder elects to
accrue market discount under a constant yield method. If the Note is disposed of
in a nontaxable transaction (other than a nonrecognition transaction described
in Section 1276(c) of the Internal Revenue Code of 1986, as amended (the
"Code")), a U.S. Holder will include any accrued market discount in ordinary
income (generally, as interest) as if such holder had sold the Note at its then
fair market value. In addition, the holder may be required to defer, until the
maturity of the Note or its earlier disposition in a taxable transaction,
deductions for all or a portion of the interest expense on any indebtedness
incurred or maintained to purchase or carry such Note.
ACQUISITION PREMIUM; AMORTIZABLE BOND PREMIUM
A U.S. Holder who purchases a Note for an amount that is greater than its
adjusted issue price but equal to or less than its stated redemption price at
maturity (generally, the sum of all amounts payable on the Note after the
purchase date other than payments of qualified stated interest) will be
considered to have purchased such Note at an "acquisition premium." Under the
acquisition premium rules, the amount of original issue discount which such
holder must include in its gross income with respect to such Note for any
taxable year will be reduced by the portion of such acquisition premium properly
allocable to such taxable year.
A U.S. Holder who purchases a Note for an amount in excess of the Note's
stated redemption price at maturity will be considered to have purchased the
Note at a "premium" and will not be required to include any original issue
discount in income. However, if the Note may be optionally redeemed after the
U.S. Holder acquires it at a price in excess of its stated redemption price at
maturity, special rules may apply which could result in a deferral of the
amorization of some bond premium until later in the term of the Note. A U.S.
Holder generally may elect to amortize this premium over the remaining term of
the Note on a constant yield method. The amount amortized in any taxable year
will be treated as a reduction of the U.S. Holder's interest income from the
Note. If a U.S. Holder does not make such an election, the amount of such
premium will decrease the gain or increase the loss otherwise recognized on a
taxable disposition of the Note. If a U.S. Holder elects to amortize premium on
a constant yield method, such election will apply to all debt obligations held
or subsequently acquired by the electing U.S. Holder on or after the first day
of the first taxable year to which the election applies and may not be revoked
without the consent of the IRS.
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<PAGE> 28
ELECTION TO TREAT ALL INTEREST AS ORIGINAL ISSUE DISCOUNT
Under the OID Regulations, a U.S. Holder may elect to treat all interest on
any Note as original issue discount and calculate the amount includable in gross
income under the constant yield method described above. For the purposes of this
election, interest includes stated interest, acquisition discount, original
issue discount, de minimis original issue discount, market discount, de minimis
market discount and unstated interest, as adjusted by any amortizable bond
premium or acquisition premium. If a U.S. Holder makes this election for a Note
with market discount or amortizable bond premium, the election is treated as an
election under the market discount or amortizable bond premium provisions,
described above, and the electing U.S. Holder will be required to amortize bond
premium or include market discount in income currently for all of the holder's
other debt instruments with market discount or amortizable bond premium. The
election is to be made for the taxable year in which the U.S. Holder acquired
the Note, and may not be revoked without the consent of the IRS. U.S. Holders
should consult with their own tax advisors about this election.
DISPOSITION OF A NOTE
Except as discussed above, upon the sale, exchange or retirement of a Note,
a U.S. Holder generally will recognize taxable gain or loss equal to the
difference between the amount realized on the sale, exchange or retirement of
the Note and such holder's adjusted tax basis in the Note. A U.S. Holder's
adjusted tax basis in a Note generally will equal such U.S. Holder's initial
investment in the Note increased by any original issue discount included in
income (and accrued market discount, if any, if the U.S. Holder has elected to
include such market discount in income) and decreased by the amount of any
payments made with respect to the Notes, other than payments of qualified stated
interest, and the amount of any amortizable bond premium taken with respect to
such Note. Such gain or loss generally will be long term capital gain or loss if
the Note is held for more than one year.
NON-U.S. HOLDERS
A Non-U.S. Holder will not be subject to United States federal income taxes
on payments of principal or interest (including original issue discount, if any)
on a Note, unless such Non-U.S. Holder is (i) a direct or indirect 10% or
greater shareholder of the Corporation that issued such Note, (ii) a controlled
foreign corporation related to the Corporation that issued such Note, or (iii) a
bank described in section 881(c)(3)(A) of the Code. To qualify for the
"portfolio interest" exemption described above, the last United States payor in
the chain of payment prior to payment to a Non-U.S. Holder (the "Withholding
Agent") must be received in the year in which a payment of interest or principal
occurs, or in either of the two preceding calendar years, a statement that (i)
is signed by the beneficial owner of the Note under penalties of perjury, (ii)
certifies that such owner is not a U.S. Holder and (iii) provides the name and
address of the beneficial owner. The statement may be made on an IRS Form W-8 or
a substantially similar form, and the beneficial owner must inform the
Withholding Agent of any change in the information on the statement within 30
days of such change. If a Note is held through a securities clearing
organization or certain other financial institutions, the organization or
institution may provide a signed statement to the Withholding Agent. However, in
such case, the signed statement must be accompanied by a copy of the IRS Form
W-8 or the substitute form provided by the beneficial owner to the organization
or institution. The Treasury Department is considering implementation of further
certification requirements aimed at determining whether the issuer of a debt
obligation is related to holders thereof.
Generally, a Non-U.S. Holder will not be subject to United States federal
income or withholding taxes on any amount of capital gain recognized by the
Non-U.S. Holder upon a sale, retirement or disposition of a Note, provided (i)
such capital gain is not effectively connected with the conduct of a trade or
business in the United States by the Non-U.S. Holder, and (ii) in the case of an
individual, the Non-U.S. Holder is not present in the United States for 183 days
or more in the taxable year in which the sale, retirement or disposition takes
place or certain other conditions are not met. Certain other exemptions may be
applicable, and a Non-U.S. Holder should consult its own tax advisor in this
regard.
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<PAGE> 29
UNITED STATES ESTATE TAX CONSIDERATIONS
The Notes will not be includible in the estate of a Non-U.S. Holder unless
the individual is a direct or indirect 10% or greater shareholder of the
Corporation or, at the time of such individual's death, payments in respect of
the Notes would have been effectively connected with the conduct by such
individual of a trade or business in the United States.
FOREIGN CURRENCY NOTES
A holder who uses the cash method of accounting and who receives a payment
of interest (including qualified stated interest) in Foreign Currency with
respect to a Note (other than with respect to a Discount Note, except to the
extent any qualified stated interest is received) will be required to include in
income the U.S. dollar value of the Foreign Currency payment (determined based
on the "spot" exchange rate in effect on the date such payment is received)
regardless of whether the payment is in fact converted to U.S. dollars at that
time, and such U.S. dollar value will be the holder's tax basis in the Foreign
Currency.
A holder (to the extent the preceding paragraph is not applicable) will be
required to include in income the U.S. dollar value of the amount of interest
income (including original issue discount) that has accrued and is otherwise
required to be taken into account with respect to a Single Foreign Currency Note
during an accrual period. The U.S. dollar value of such accrued interest income
will be determined by translating such income at the average rate of exchange
for the accrual period or, with respect to an interest accrual period that spans
two taxable years, at the average rate for the partial period within the taxable
year. The average rate of exchange for the interest accrual period (or partial
period) is the simple average of the "spot" exchange rates for each business day
of such period or other average exchange rate for the period if such rate is
reasonably derived and consistently applied by the taxpayer. Such holder may
elect to determine the U.S. dollar value of any interest income accrued in a
Foreign Currency under an alternative method, as described below under "Spot
Rate Convention Election." Such holder will recognize ordinary income or loss
with respect to Foreign Currency relating to accrued interest income on the date
such income is actually received. The amount of ordinary income or loss
recognized on the date such interest is actually received will equal the
difference between the U.S. dollar value of the Foreign Currency payments
received (determined by using the "spot" exchange rate in effect on the date
such payment is received) in respect of such accrual period and the U.S. dollar
value of the interest income that has accrued during such accrual period as
determined by using one of the two conventions described above.
A holder will have a tax basis in any Foreign Currency received on the
sale, exchange or retirement of a Single Foreign Currency Note equal to the U.S.
dollar value of such Foreign Currency, determined by using the "spot" exchange
rate in effect at the time of such sale, exchange or retirement. Any gain or
loss realized by a holder on a sale or other disposition of Foreign Currency
(including its exchange for U.S. dollars or its use to purchase Single Foreign
Currency Notes) will be ordinary income or loss.
A holder's tax basis in a Single Foreign Currency Note, and the amount of
any subsequent adjustment to such holder's tax basis, will be the U.S. dollar
value of the Foreign Currency amount paid for such Single Foreign Currency Note,
or of the Foreign Currency amount of the adjustment, determined on the date of
such purchase or adjustment. A holder who converts U.S. dollars to a Foreign
Currency and immediately uses that currency to purchase a Single Foreign
Currency Note denominated in the same currency ordinarily will not recognize
gain or loss in connection with such conversion and purchase. However, a holder
who purchases a single Foreign Currency Note with previously owned Foreign
Currency will recognize ordinary income or loss in an amount equal to the
difference, if any, between such holder's tax basis in the Foreign Currency and
the U.S. dollar fair market value of the Single Foreign Currency Note on the
date of purchase.
Gain or loss realized with respect to principal upon the sale, exchange or
retirement of a Single Foreign Currency Note will be ordinary income or loss to
the extent it is attributable to fluctuations in currency exchange rates. Gain
or loss attributable to fluctuations in exchange rates will equal the difference
between the U.S. dollar value of the Foreign Currency principal amount of such
Note, determined by using the "spot" exchange rate in effect on the date such
payment is received or such Note is disposed of and the U.S. dollar value of the
Foreign Currency principal amount of such Note, determined by using the "spot"
exchange rate in effect on the date such Holder acquired such Note. The foreign
currency principal amount of a Single
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Foreign Currency Note generally equals the issue price in foreign currency of
such Note. Such foreign currency gain or loss will be recognized only to the
extent of the total gain or loss recognized by a holder on the sale, exchange or
retirement of the single Foreign Currency Note. The source of exchange gain or
loss will be determined by reference to the residence of the holder or the
"qualified business unit" of the holder on whose books the Note is properly
reflected. Any gain or loss recognized by such a holder in excess of such
foreign currency gain or loss will be capital gain or loss (except in the case
of an original issue Discount Note, to the extent of any accrued original issue
discount), and generally will be long-term capital gain or loss if the holding
period of the single Foreign Currency Notes exceeds one year.
Any gain or loss which is treated as ordinary income or loss, as described
above, generally will not be treated as interest income or expense except to the
extent provided by administrative pronouncements of the Internal Revenue
Service.
The amount of original issue discount on a Foreign Currency Note is
determined in the relevant foreign currency. The amount of such original issue
discount that is taken into account currently under general rules applicable to
Notes other than single Foreign Currency Notes is to be determined for any
accrual period in the relevant foreign currency and then translated into U.S.
dollars on the basis of the average exchange rate in effect during such accrual
period (or, with respect to an accrual period that spans two taxable years, the
partial period within the taxable year) unless the holder elects to use the
alternative method, as described below under "Spot Rate Convention Election."
SPOT RATE CONVENTION ELECTION
For taxable years beginning after March 17, 1992, a United States Holder
may elect to translate foreign currency original issue discount (and, in the
case of an accrual basis United States Holder, accrued interest) into U.S.
dollars at the exchange rate in effect on the last day of an accrual period for
such original issue discount or interest, or in the case of the accrual period
that spans two taxable years, at the exchange rate in effect on the last day of
the partial period within the taxable year. Additionally, if a payment of
original issue discount or interest is actually received within five business
days of the last day of the accrual period or partial accrual period within the
taxable year, an electing United States Holder may instead translate such
original issue discount or accrued interest into U.S. dollars at the exchange
rate in effect on the date of such receipt. Any such election will apply to all
debt instruments held by the United States Holder at the beginning of the first
taxable year to which the election applies or thereafter acquired by the United
States Holder, and will be irrevocable without the consent of the Internal
Revenue Service.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Backup withholding of United States federal income tax may apply at a rate
of 31% to payments including original issue discount made in respect of the
Notes to holders who are not "exempt recipients" and who fail to provide and
certify certain identifying information (such as the holder's taxpayer
identification number) in the required manner. Generally, individuals are not
exempt recipients, whereas corporations and certain other entities generally are
exempt recipients. Payments made in respect of the Notes to a U.S. Holder must
be reported to the IRS, unless the U.S. Holder establishes that it is an exempt
recipient or otherwise establishes an exemption. Compliance with the
identification procedures described in the preceding section generally would
establish an exemption from backup withholding for Non-U.S. Holders who are not
exempt recipients.
In addition, upon the sale of a Note to (or through) a broker, the broker
must withhold 31% of the entire purchase price, unless either (i) the broker
determines that the seller is a corporation or other exempt recipient or (ii)
the seller provides, in the required manner, certain identifying information
and, in the case of a Non-U.S. Holder, certifies that such seller is a Non-U.S.
Holder (and certain other conditions are met). Such a sale must also be reported
by the broker to the IRS, unless the broker determines that the seller is an
exempt recipient or the seller certifies its Non-U.S. status (and certain other
conditions are met). Certification of the registered owner's Non-U.S. status
generally would be made on an IRS Form W-8 under penalties of perjury, although
in certain cases it may be possible to submit other documentary evidence.
S-27
<PAGE> 31
Any amounts withheld under the backup withholding rules from a payment to a
beneficial owner would be allowed as a refund or a credit against such
beneficial owner's United States federal income tax provided the required
information is furnished to the IRS.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR
SITUATION. HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE OWNERSHIP AND DISPOSITION OF THE NOTES, INCLUDING
THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE
POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
PLAN OF DISTRIBUTION
The Notes are being offered on a continuous basis by the Corporation
through Salomon Brothers Inc, CS First Boston Corporation, Goldman, Sachs & Co.
and J.P. Morgan Securities Inc. (the "Agents"), each of which will agree to use
its reasonable efforts to solicit offers to purchase Notes. The Corporation will
have the sole right to accept offers to purchase Notes and may reject any offer
to purchase Notes in whole or in part. An Agent will have the right to reject
any offer to purchase Notes solicited by it in whole or in part. Payment of the
purchase price of the Notes will be required to be made in immediately available
funds. Unless otherwise specified in the applicable Pricing Supplement, with
respect to Notes with a Stated Maturity of from nine months to 30 years from the
date of issue, the Company will pay each Agent a commission, in the form of a
discount ranging from .125% to .750% of the principal amount of each Note,
depending upon the Stated Maturity, sold through such Agent. With respect to
Notes with a Stated Maturity that is longer than 30 years from the date of issue
sold through any Agent, the rate of commission will be negotiated at the time of
sale and will be specified in the applicable Pricing Supplement. The Corporation
may appoint additional agents to solicit sales of the Notes or accept (but not
solicit) offers from additional agents for the sale of Notes; provided that any
such solicitation and sale of the Notes shall be on the same terms and
conditions as the Agents have agreed to. The Corporation may also sell Notes
directly to investors on its own behalf. In the case of sales made directly by
the Corporation, no commission will be payable.
The Corporation may also sell Notes to an Agent as principal for its own
account or to a group of underwriters for whom an Agent acts as representative
at discounts or premiums to be agreed upon at the time of sale. Such Notes may
be resold to investors and other purchasers at prevailing market prices, or
prices related thereto at the time of such resale, at negotiated prices or
otherwise, as determined by the Agent. In addition, the Agents may offer the
Notes they have purchased as principal to other dealers. The Agents may sell
Notes to any dealer at a discount and, unless otherwise specified in the
applicable Pricing Supplement, such discount allowed to any dealer will not be
in excess of the discount received by such Agent from the Corporation unless
otherwise specified in the applicable Pricing Supplement. After the initial
public offering of Notes to be resold to investors and other purchasers on a
fixed public offering price basis, the public offering price, concession and
discount may be changed.
An Agent may be deemed to be an "underwriter" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"). The Corporation and
the Agents have agreed to indemnify each other against certain liabilities,
including liabilities under the Securities Act, or to contribute to payments
made in respect thereof. The Corporation has also agreed to reimburse the Agents
for certain expenses, including the fees and expenses of counsel.
The Corporation does not intend to apply for the listing of the Notes on
any national or regional securities exchange. The Corporation has been advised
by the Agents that the Agents intend to make a market in the Notes, as permitted
by applicable laws and regulations. The Agents are not obligated to do so,
however, and the Agents may discontinue making a market at any time without
notice. No assurance can be given as to the liquidity of any trading market for
the Notes.
Concurrently with the offering of Notes through the Agents as described
herein, the Corporation may issue other Securities as described in the
accompanying Prospectus.
S-28
<PAGE> 32
In the ordinary course of their respective businesses, certain of the
Agents and their affiliates have engaged, and may in the future engage, in
investment banking and commercial banking transactions with the Corporation and
certain of its affiliates.
VALIDITY OF THE NOTES
The validity of the Notes will be passed upon for the Corporation by any
Senior Managing Counsel to the Corporation authorized to render an opinion in
the State of Ohio, and for the Agents by Shearman & Sterling, New York, New
York. The Senior Managing Counsel to the Corporation will rely as to all matters
of New York law upon the opinion of Shearman & Sterling. Shearman & Sterling
will rely as to all matters of Ohio law upon the opinion of the Senior Managing
Counsel to the Corporation. Thompson, Hine and Flory will pass on certain tax
matters related to the Notes. See "United States Tax Considerations."
The opinion of the Senior Managing Counsel to the Corporation and Shearman
& Sterling will be conditioned upon, and subject to certain assumptions
regarding, future action required to be taken by the Corporation and the Trustee
in connection with the issuance and sale of Notes, the specific terms of Notes
and other matters which may affect the validity of Notes but which cannot be
ascertained on the date of such opinions. As of March 24, 1995, attorneys at
Thompson, Hine and Flory owned an aggregate of approximately 26,888 common
shares of the Corporation. In addition, as of March 24, 1995, the Senior
Managing Counsel to the Corporation currently authorized to render the opinion
on behalf of the Corporation owned approximately 2,700 common shares of the
Corporation and options to purchase 6,500 common shares of the Corporation which
were exercisable within 60 days of such date.
S-29
<PAGE> 33
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may
not be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer
to buy nor shall there be any sale of these securities in any State in
which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION DATED APRIL , 1995
PROSPECTUS
<TABLE>
<S> <C>
DEBT SECURITIES DEBT WARRANTS
PREFERRED STOCK PREFERRED STOCK WARRANTS
DEPOSITARY SHARES DEPOSITARY SHARE WARRANTS
COMMON SHARES COMMON SHARE WARRANTS
CAPITAL SECURITIES
</TABLE>
KeyCorp, an Ohio corporation (the "Corporation"), intends to issue from time
to time, either separately or together, (i) one or more series of its unsecured
debt securities, which may be either senior debentures, notes, bonds, and/or
other evidences of indebtedness (the "Senior Debt Securities") or subordinated
debentures, notes, bonds, and/or other evidences of indebtedness which may be
convertible at the option of a holder or the Corporation into Capital Securities
(as described herein) of the Corporation (the "Subordinated Debt Securities"
and, together with the Senior Debt Securities, the "Debt Securities"), (ii)
warrants to purchase Debt Securities (the "Debt Warrants"), (iii) shares of
Preferred Stock, with a par value of $1 each (the "Preferred Stock") which may
be 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, (iv) shares of Preferred Stock represented by depositary shares
("Depositary Shares"), (v) warrants to purchase shares of Preferred Stock (the
"Preferred Stock Warrants"), (vi) warrants to purchase Depositary Shares (the
"Depositary Share Warrants"), (vii) Common Shares, with a par value of $1 each
(the "Common Shares"), together with the related rights to purchase Common
Shares (the "Rights"), and (viii) warrants to purchase Common Shares, together
with the Rights, (the "Common Share Warrants," and together with the Debt
Warrants, the Preferred Stock Warrants, and the Depositary Share Warrants, being
collectively referred to herein as the "Securities Warrants") in amounts, at
prices, and on terms to be determined at the time of the offering. The Debt
Securities, Securities Warrants, Preferred Stock, Depositary Shares, and Common
Shares offered hereby, together with the Capital Securities, are collectively
referred to herein as the "Securities."
The Securities offered pursuant to this Prospectus may be offered separately
or together in one or more series up to an aggregate initial public offering
price of $900,000,000 or the equivalent thereof in one or more foreign
currencies or units of one or more foreign currencies or composite currencies
(such as European Currency Units), at individual prices and on terms to be set
forth in one or more supplements to this Prospectus (each, a "Prospectus
Supplement"). The particular terms of the Securities offered by any Prospectus
Supplement will be described in the Prospectus Supplement relating to such
Securities (an "Applicable Prospectus Supplement").
The Senior Debt Securities, when issued, will rank equally with all other
unsubordinated and unsecured indebtedness of the Corporation. The Subordinated
Debt Securities will be subordinate to all existing and future Senior
Indebtedness (as defined herein) of the Corporation and, in certain events
involving the insolvency of the Corporation, to Other Senior Obligations (as
defined herein) of the Corporation. See "Description of Debt
Securities -- Subordination of Subordinated Debt Securities." The Debt
Securities of any series may be issued with Securities Warrants, and, in the
case of the Subordinated Debt Securities, may be convertible into Capital
Securities of the Corporation. Unless otherwise indicated in a Prospectus
Supplement, the maturity of the Subordinated Debt Securities will be subject to
acceleration only in the event of certain events of bankruptcy, insolvency, or
reorganization of the Corporation or upon receivership of a Major Bank (as
defined herein). See "Description of Debt Securities -- Subordination of
Subordinated Debt Securities".
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in a Prospectus Supplement and, among other
things, will include, where applicable, (i) in the case of Debt Securities, the
specific designation, aggregate principal amount, currency, denomination,
maturity, priority, premium, if any, rate of interest (which may be variable or
fixed), time of payment of interest, terms for optional redemption or repayment
by the Corporation or any holder and for sinking fund payments, terms for
conversion, the initial public offering price, any special provisions related to
Debt Securities denominated in a foreign currency or issued as medium-term
notes, original issue discount securities, or with other special terms, and the
designation of any applicable trustee, security registrar, or paying agent, (ii)
in the case of shares of Preferred Stock, the specific title and stated value,
number of shares or fractional interests therein, any dividend, liquidation,
redemption, voting, and other rights, the terms for conversion, the initial
public offering price, and whether such shares are to be issued as Depositary
Shares, and, if so, the fraction of a share to be represented by each Depositary
Share and the designation of the Depositary (as defined herein), (iii) in the
case of Common Shares, the aggregate number of shares offered and the initial
offering price, and (iv) in the case of Securities Warrants, where applicable,
the applicable type and amount of securities covered thereby, and, where
applicable, the aggregate amount, duration, offering price, exercise price, and
detachability.
A Prospectus Supplement will also contain information, where applicable,
about certain U.S. Federal income tax, accounting, and other considerations
relating to, and any listing on a securities exchange of, the Securities covered
by the Prospectus Supplement.
THE SECURITIES WILL BE OBLIGATIONS OF THE CORPORATION, ARE NOT AND WILL NOT
BE SAVINGS ACCOUNTS, DEPOSITS, OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK
SUBSIDIARY OF THE CORPORATION, AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BANK INSURANCE FUND, THE SAVINGS ASSOCIATION
INSURANCE FUND, OR ANY OTHER GOVERNMENT AGENCY OR INSTRUMENTALITY.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE
------------------
The Securities may be sold to underwriters pursuant to the terms of the
offering fixed at the time of sale, directly by the Corporation, or through
dealers or agents designated from time to time by the Corporation, which agents
may be affiliates of the Corporation. Each Prospectus Supplement will set forth
the names of the underwriters, dealers, or agents, if any, and any applicable
fees, commissions, or discounts and the net proceeds to the Corporation from
such sale together with the terms of the offering. The Corporation may also
issue contracts under which the counterparty may be required to purchase Debt
Securities, Preferred Stock, or Depositary Shares. Such contracts would be
issued with the Debt Securities, Preferred Stock, Depositary Shares, and/or
Securities Warrants in amounts, at prices, and on terms to be set forth in a
Prospectus Supplement. See "Plan of Distribution."
THE DATE OF THIS PROSPECTUS IS APRIL , 1995.
<PAGE> 34
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements, and other information filed by the Corporation can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Commission's regional offices at The Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661, and Seven World Trade Center, Thirteenth
Floor, New York, New York 10048. Copies of such material can be obtained by mail
from the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Certain securities of the
Corporation are listed on the New York Stock Exchange, and such reports, proxy
statements, and other information concerning the Corporation also may be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
This Prospectus constitutes part of a registration statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Corporation with the Commission under the Securities
Act. This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted from this Prospectus
in accordance with the rules and regulations of the Commission. Reference is
made to the Registration Statement and to the exhibits thereto for further
information pertaining to the Corporation and the Securities offered hereby. The
Registration Statement (and exhibits thereto) may be inspected without charge at
the office of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and copies thereof may be obtained from the Commission at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents and information heretofore filed by the Corporation with the
Commission pursuant to Sections 12 or 13 of the Exchange Act:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1994;
2. The Corporation's Current Report on Form 8-K, filed on January 20,
1995;
3. The description of the Corporation's Common Shares and the Rights
to purchase Common Shares contained in the Corporation's Registration
Statement on Form 8-A dated July 31, 1992 as amended by Form 8-A/A filed on
February 25, 1994 under Section 12 of the Exchange Act; and
4. The description of the Corporation's 10% Cumulative Preferred
Stock, Class A (the "10% Cumulative Preferred Stock") and the Depositary
Shares representing one-fifth of one share of 10% Cumulative Preferred
Stock contained in the Corporation's Registration Statement on Form 8-A,
filed on February 23, 1994 under Section 12 of the Exchange Act.
All reports subsequently filed by the Corporation pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the termination of the
offering of the Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in a Prospectus Supplement, or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE CORPORATION WILL PROVIDE UPON REQUEST AND WITHOUT CHARGE TO EACH PERSON
TO WHOM THIS PROSPECTUS IS DELIVERED A COPY OF ANY OR ALL OF THE FOREGOING
DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED THEREIN BY REFERENCE). WRITTEN
REQUESTS SHOULD BE DIRECTED TO CARTER B. CHASE, EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL, AND SECRETARY, KEYCORP, 127 PUBLIC SQUARE, CLEVELAND, OHIO
44114-1306 (TELEPHONE (216) 689-3000).
2
<PAGE> 35
NO DEALER, SALESMAN, OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
CORPORATION OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS MAY NOT BE USED TO
CONSUMMATE SALES OF THE SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS
SUPPLEMENT. THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OTHER THAN THE REGISTERED SECURITIES TO WHICH THEY RELATE AND DO NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE CORPORATION SINCE THE DATE HEREOF OR THEREOF OR THAT THE
INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO SUCH DATE.
UNLESS OTHERWISE INDICATED, CURRENCY AMOUNTS IN THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT ARE STATED IN U.S. DOLLARS ("$," "DOLLARS," "U.S.
DOLLARS," OR "U.S. $").
3
<PAGE> 36
THE CORPORATION
OVERVIEW
On March 1, 1994, KeyCorp, a financial services holding company
headquartered in Albany, New York, with approximately $33 billion in assets at
December 31, 1993 ("old KeyCorp"), merged into and with Society Corporation, a
financial services holding company headquartered in Cleveland, Ohio, with
approximately $27 billion in assets at December 31, 1993 ("Society"), pursuant
to an Agreement and Plan of Merger, and a related Supplemental Agreement to
Agreement and Plan of Merger, each dated as of October 1, 1993, and each as
amended. In the merger, Society, an Ohio corporation, was the surviving
corporation, but changed its name to KeyCorp (also referred to herein as the
"Corporation"). The merger was accounted for as a pooling of interests.
Accordingly, all financial data of KeyCorp set forth herein (or incorporated by
reference) has been restated to give effect to the merger of old KeyCorp into
and with Society.
The merger of old KeyCorp into and with Society created a financial
services holding company which traces its roots back to 1825, when the first
predecessor of old KeyCorp was organized. At December 31, 1994, KeyCorp was one
of the nation's largest bank holding companies, based upon consolidated total
assets of approximately $66.8 billion.
KeyCorp is a legal entity separate and distinct from its banking and other
subsidiaries. Accordingly, the right of KeyCorp, its security holders and its
creditors to participate in any distribution of the assets or earnings of its
banking and other subsidiaries is necessarily subject to the prior claims of the
respective creditors of such banking and other subsidiaries, except to the
extent that claims of KeyCorp in its capacity as a creditor of such banking and
other subsidiaries may be recognized.
The executive offices of KeyCorp are located at 127 Public Square,
Cleveland, Ohio 44114-1306, and its telephone number is (216) 689-6300.
SUBSIDIARIES
KeyCorp provides banking and other financial services across much of the
country's northern tier and in Florida through a network of subsidiaries
operating 1,272 full-service banking offices in 13 states, giving KeyCorp the
nation's fifth largest domestic branch network as of December 31, 1994 (before
giving effect to KeyCorp's recent acquisitions of BANKVERMONT Corporation, Casco
Northern Bank, National Association and OMNIBANCORP as described in the "Recent
Mergers, Acquisitions and Divestitures" section below. KeyCorp's largest bank
subsidiaries include Society National Bank, headquartered in Cleveland, Ohio,
which is the largest bank in Ohio and one of the nation's major regional banks
with $24.6 billion in total assets and 289 full-service banking offices at
December 31, 1994; Key Bank of New York, headquartered in Albany, New York, with
$14.9 billion in total assets and 327 full-service banking offices at December
31, 1994 ("Key-NY"); Key Bank of Washington, headquartered in Tacoma,
Washington, with $7.6 billion in total assets and 186 full-service banking
offices at December 31, 1994 ("Key-Washington"); and Society National Bank,
Indiana, headquartered in South Bend, Indiana, with $3.3 billion in total assets
and 92 full-service banking offices at December 31, 1994 ("SNBI"). In addition,
KeyCorp operates bank subsidiaries in Alaska, Colorado, Idaho, Maine, Michigan,
Oregon, Utah, Vermont (its Vermont subsidiary was acquired on January 27, 1995)
and Wyoming, a savings association subsidiary in Florida, and either a trust
company subsidiary or an office of a trust company subsidiary in each of the
aforementioned states except Vermont. See "-- Recent Mergers, Acquisitions and
Divestitures," below.
Through its bank and trust company subsidiaries KeyCorp provides a wide
range of banking, fiduciary and other financial services to its corporate,
individual and institutional customers located throughout the country. In
addition to the customary banking services of accepting deposits and making
loans, KeyCorp's bank and trust company subsidiaries provide specialized
services tailored to specific markets, including personal and corporate trust
services, personal financial services, customer access to mutual funds, cash
management services, investment banking services and international banking
services. Through its subsidiary banks, trust companies and registered
investment adviser subsidiaries, KeyCorp provides investment management services
to institutional and individual clients, including large corporate and public
retirement plans, Taft-Hartley plans, foundations and endowments, and high net
worth individuals. Several of KeyCorp's
4
<PAGE> 37
investment management and trust company subsidiaries also serve as investment
advisers to KeyCorp's proprietary mutual funds.
KeyCorp also provides other financial services both in and outside of its
primary banking markets through its nonbank subsidiaries. Services provided by
nonbank financial services subsidiaries include reinsurance of credit life and
accident and health insurance on loans made by subsidiary banks, venture capital
and small business investment financing services, equipment lease financing,
community development financing, stock transfer agent, and other financial
services. KeyCorp is also a 20% equity participant in a joint venture with a
number of other unaffiliated bank holding companies in Electronic Payment
Services, Inc., which provides automated teller machine access to bank customers
throughout most of the United States through its subsidiary, Money Access
Service Inc. (more commonly known as the MAC(R) network).
RECENT MERGERS, ACQUISITIONS AND DIVESTITURES
PENDING
AutoFinance Group, Inc. On March 20, 1995, KeyCorp entered into a
definitive agreement to acquire AutoFinance Group, Inc. ("AFG"), a suburban
Chicago based national consumer finance company, in a tax-free exchange of
stock. Under the terms of the agreement, AFG Shareholders will receive KeyCorp
common shares valued at $16.50 per share, subject to a maximum of .6 and a
minimum of .5 KeyCorp common shares, for each AFG Share. Based upon the market
price of KeyCorp common shares on the date of execution of the definitive
agreement, this would result in the issuance of approximately 11 million KeyCorp
common shares with a value of approximately $325 million. In addition,
immediately prior to the closing, AFG will complete a spin-off to its
Shareholders of 95.01% of its common stock interest in Patlex Corporation, a
wholly owned subsidiary of AFG. Upon consummation of the acquisition, AFG will
merge into KeyCorp Finance Inc., a wholly owned subsidiary of KeyCorp. The
transaction, which is subject to approval by AFG's Shareholders and certain
regulatory approvals, is expected to close during the fourth quarter of 1995 and
will be accounted for as a purchase. AFG had total assets of $124.2 million at
December 31, 1994.
KeyCorp Mortgage Inc. On February 22, 1995, KeyCorp entered into a
definitive agreement for the sale of the residential mortgage loan servicing
operations of KeyCorp Mortgage Inc. ("KMI"), an indirect wholly owned subsidiary
of KeyCorp, to NationsBanc Mortgage Corp., a subsidiary of NationsBank Corp. KMI
services approximately $28 billion of residential mortgage loans. The
transaction is expected to close by the end of the first quarter of 1995,
pending necessary Federal regulatory approvals. After the sale of KMI, KeyCorp
will continue to service commercial mortgages and to originate residential
mortgage loans through its banking franchise. KeyCorp plans to package and sell
the rights to service all residential mortgage loans originated after the KMI
sale through a newly formed subsidiary.
Spears, Benzak, Salomon & Farrell, Inc. On January 17, 1995, KeyCorp
entered into a definitive agreement under which KeyCorp Asset Management
Holdings, Inc., an indirect wholly owned subsidiary of KeyCorp, will acquire
Spears, Benzak, Salomon & Farrell, Inc., a New York-based investment management
firm ("Spears, Benzak"). The transaction, which is subject to certain regulatory
approvals, is expected to close during the second quarter of 1995 and will be
accounted for as a purchase. Spears, Benzak had aggregate assets under
management of approximately $3 billion as of December 31, 1994.
COMPLETED
OMNIBANCORP. On February 28, 1995, KeyCorp acquired OMNIBANCORP, based in
Denver, Colorado, in a tax-free exchange of stock. Under the terms of the merger
agreement, 4,043,653 KeyCorp common shares were exchanged for all of the
outstanding shares of OMNIBANCORP common stock (based on an exchange ratio of
.2452 KeyCorp common shares for each share of OMNIBANCORP). OMNIBANCORP had five
Colorado-chartered banks ("Omnibanks") and had 19 branches and total assets of
$500.2 million at the date of acquisition. The Omnibanks will be merged with and
into Key Bank of Colorado, a wholly owned subsidiary of KeyCorp. The transaction
was accounted for as a purchase.
Casco Northern Bank, National Association. On February 16, 1995, KeyCorp
acquired Casco Northern Bank, National Association ("Casco Northern"),
headquartered in Portland, Maine, for cash consideration of
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$205.1 million. The transaction was accounted for as a purchase. At the date of
acquisition, Casco Northern had total assets of $1.0 billion and 34 branches in
Maine, but pursuant to the terms of a letter dated December 16, 1994, from the
United States Department of Justice, KeyCorp will divest 11 of these branches.
The remaining 23 branches of Casco Northern were acquired by Key Bank of Maine,
an indirect wholly owned subsidiary of KeyCorp.
BANKVERMONT Corporation. On January 27, 1995, KeyCorp acquired BANKVERMONT
Corporation, headquartered in Burlington, Vermont, for cash consideration of
$90.3 million. The transaction was accounted for as a purchase. Upon
consummation of the acquisition, BANKVERMONT Corporation's only subsidiary, Bank
of Vermont, with 12 branches and total assets of $660.5 million, became an
indirect wholly owned subsidiary of KeyCorp and was renamed Key Bank of Vermont.
The Bank of Greeley. On December 30, 1994, KeyCorp acquired The Bank of
Greeley, a single location bank in Greeley, Colorado ("Greeley Bank"), through a
merger of Greeley Bank with and into Key Bank of Colorado, a wholly owned
subsidiary of KeyCorp, in a tax-free exchange of stock. Under the terms of the
merger agreement, 259,697 KeyCorp Common Shares were exchanged for all of the
outstanding shares of Greeley Bank common stock (based on an exchange ratio of
1.026 KeyCorp common shares for each share of Greeley Bank). The transaction was
accounted for as a pooling of interests; however, financial statements for
periods prior to the merger have not been restated to include the accounts and
results of operations of Greeley Bank because the transaction was not material
to KeyCorp. Greeley Bank had total assets of $60 million at the date of
acquisition.
First Citizens Bancorp of Indiana. On December 13, 1994, KeyCorp acquired
First Citizens Bancorp of Indiana ("First Citizens"), based in Anderson, Indiana
in a tax-free exchange of stock. Under terms of the merger agreement, 1,960,119
KeyCorp Common Shares were exchanged for all the outstanding shares of First
Citizens common stock (based on an exchange ratio of 1.4286 KeyCorp common
shares for each share of First Citizens). First Citizens' subsidiary, Citizens
Banking Company, an Indiana-chartered commercial bank with nine branches in
central Indiana, and total assets of $347 million at the date of acquisition,
merged with and into Society National Bank, Indiana, a wholly owned subsidiary
of KeyCorp, on March 10, 1995. The transaction was accounted for as a purchase.
State Home Savings Bank, FSB. On September 16, 1994, Society National
Bank, a wholly owned subsidiary of KeyCorp, acquired State Home Savings Bank,
FSB ("State Home Savings"), a closely held Federal stock savings bank based in
Bowling Green, Ohio, for cash consideration of $44.2 million. The transaction
was accounted for as a purchase. State Home Savings had 14 branches in five
Northwest Ohio counties and total assets of $321 million at the date of
acquisition.
Commercial Bancorporation of Colorado. On March 24, 1994, Commercial
Bancorporation of Colorado ("CBC"), a bank holding company with subsidiaries
operating in the Denver, Colorado Springs, Sterling and Fort Collins areas of
Colorado was acquired by KeyCorp in a tax-free exchange of stock and its
subsidiary banks merged into Key Bank of Colorado, a wholly owned subsidiary of
KeyCorp. Under the terms of the merger agreement, 2,900,389 KeyCorp common
shares were exchanged for all of the outstanding shares of CBC common stock
(based on an exchange ratio of .899 KeyCorp common shares for each share of
CBC). CBC had total assets of $409 million at the date of acquisition. The
merger qualified for accounting as a pooling of interests; however, financial
statements for periods prior to the merger have not been restated to include the
accounts and results of operations of CBC because the transaction was not
material to KeyCorp.
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<PAGE> 39
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The Corporation's ratio of earnings to fixed charges and ratio of earnings
to combined fixed charges and preferred stock dividends are set forth below for
the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------
1994 1993 1992 1991 1990
------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits................... 3.50x 4.15x 3.67x 2.07x 1.57x
Including Interest on Deposits................... 1.70x 1.69x 1.48x 1.18x 1.10x
Earnings to Combined Fixed Charges and Preferred
Stock Dividends:
Excluding Interest on Deposits................... 3.34x 3.84x 3.31x 1.96x 1.54x
Including Interest on Deposits................... 1.68x 1.66x 1.45x 1.17x 1.10x
</TABLE>
For purposes of computing the above ratios, earnings represent consolidated
income before income taxes plus fixed charges. Fixed charges include interest
expense (excluding or including interest on deposits, as the case may be) and
the proportion deemed representative of the interest factor of rental expense,
net of income from subleases. Pre-tax earnings required for preferred stock
dividends were computed using the effective tax rate for the applicable year.
USE OF PROCEEDS
Unless otherwise set forth in the Applicable Prospectus Supplement, the
Corporation intends to use the net proceeds from the sale of the Securities for
general corporate purposes, including investments in and advances to the
Corporation's banking and nonbanking subsidiaries, reduction of short-term
borrowings, investments, and financing possible future acquisitions including,
without limitation, the acquisition of banking and nonbanking companies and
financial assets and liabilities.
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<PAGE> 40
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities are to be issued under an Indenture, dated as of
June 10, 1994, (the "Senior Indenture"), between the Corporation and Bankers
Trust Company, as Trustee. The Subordinated Debt Securities are to be issued
under an Indenture, dated as of June 10, 1994 (the "Subordinated Indenture"),
also between the Corporation and Bankers Trust Company, as Trustee. Copies of
the Senior Indenture and the Subordinated Indenture have been filed with the
Commission as exhibits to the Registration Statement of which this Prospectus is
a part. The Senior Indenture and the Subordinated Indenture are sometimes
referred to collectively herein as the "Indentures". Bankers Trust Company is
hereinafter referred to as the "Senior Trustee" when referring to it in its
capacity as trustee under the Senior Indenture, as the "Subordinated Trustee"
when referring to it in its capacity as trustee under the Subordinated
Indenture, and as the "Trustee" when referring to it in its capacity as trustee
under both of the Indentures. The following summaries of certain provisions of
the Senior Debt Securities, the Subordinated Debt Securities, and the Indentures
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Debt Securities and the
Indenture applicable to a particular series of Debt Securities (the "Applicable
Indenture"), including the definitions therein of certain terms. Wherever
particular Sections, Articles, or defined terms of the Applicable Indenture are
referred to, it is intended that such Sections, Articles, or defined terms shall
be incorporated herein by reference. Article and Section references used herein
are references to the Applicable Indenture. Capitalized terms not otherwise
defined herein shall have the meaning given to them in the Applicable Indenture.
The following sets forth certain general terms and provisions of the Debt
Securities offered hereby.
GENERAL TERMS
The Indentures provide that the Debt Securities issued thereunder may be
issued without limit as to aggregate principal amount and provide that Debt
Securities may be issued thereunder from time to time in one or more series. The
Senior Debt Securities will rank equally with all other unsecured and
unsubordinated indebtedness of the Corporation which is not accorded a priority
under applicable law. The Subordinated Debt Securities will rank equally with
all other unsecured indebtedness of the Corporation, but, as described below,
will be subordinated in right of payment to the prior payment in full of the
Senior Indebtedness of the Corporation and, in certain events involving the
insolvency of the Corporation, Other Senior Obligations of the Corporation. The
Debt Securities will be unsecured obligations of the Corporation.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal of (and premium, if any), or interest, if any, on the Debt Securities
will be payable, and the transfer of the Debt Securities will be registrable, at
the office or agency of the Corporation in the Borough of Manhattan, the City of
New York, maintained for such purpose and at any other office or agency
maintained by the Corporation for such purpose, except that, at the option of
the Corporation, interest may be paid by mailing a check to the address of the
person entitled thereto as it appears on the register for the Debt Securities or
by transfer to an account maintained with a bank located in the United States.
(Sections 301, 305, and 1002) Debt Securities of a series may be issuable solely
as Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities (both as defined in the Indentures). Unless
otherwise provided in the Applicable Prospectus Supplement, Debt Securities
denominated in U.S. dollars are issuable in denominations of $1,000 and integral
multiples of $1,000 (in the case of Registered Securities) and in denominations
of $5,000 (in the case of Bearer Securities). The Indentures also provide that
Debt Securities of a series may be issuable in global form, which may be of any
denomination. See "Book-Entry Procedures". Unless otherwise indicated in the
Applicable Prospectus Supplement, Bearer Securities will have interest coupons
attached. (Sections 201 and 302) No service charge will be made for any
registration of transfer or exchange of the Debt Securities, but the Corporation
may require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith. (Section 305)
The Applicable Prospectus Supplement will describe the following terms of
the Debt Securities offered thereby:
(1) The title of such Debt Securities and whether such Debt Securities
will be Senior Debt Securities or Subordinated Debt Securities.
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<PAGE> 41
(2) The aggregate principal amount of such Debt Securities and any
limit on the aggregate principal amount of Debt Securities of such series.
(3) If other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of the
maturity thereof or the method by which such portion shall be determined.
(4) The date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of such Debt Securities
will be payable.
(5) The rate or rates at which such Debt Securities will bear
interest, if any, or the method by which such rate or rates will be
determined, the calculation agent, if any, the date or dates from which any
interest will accrue or the method by which such date or dates will be
determined, the date or dates on which such interest, if any, will be
payable and the regular record date or dates, if any, for the interest
payable on any registered security on any interest payment date, or the
method by which any such date will be determined, and the basis upon which
interest will be calculated if other than that of a 360-day year of twelve
30-day months.
(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 the other terms and conditions upon which, such
Debt Securities may be redeemed in whole or in part at the option of the
Corporation, if the Corporation is to have that option.
(7) The obligation, if any, of the Corporation to redeem, repay, or
purchase such Debt Securities in whole or in part, pursuant to any sinking
fund or analogous provision 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 the other terms and
conditions upon which, such Debt Securities will be so redeemed, repaid, or
purchased.
(8) Whether such Debt Securities are to be issuable as Registered
Securities, Bearer Securities, or both, any restrictions applicable to the
offer, sale, or delivery of Bearer Securities and the terms, if any, 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 such Debt Securities will be issuable initially
in temporary global form, whether any such Debt Securities will 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 Debt 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
the Applicable Indenture, and, if Registered Securities are to be issuable
as a global security, the identity of the depository for such Debt
Securities.
(9) If other than U.S. dollars, the currency or currencies, currency
unit or units or composite currency or currencies in which payments of the
principal of (and premium, if any) or interest, if any, on such Debt
Securities will be payable or in which such Debt Securities will be
denominated.
(10) Whether the amount of payments of principal of (and premium, if
any) and/or interest, if any, on such Debt Securities may be determined
with reference to an index, formula, or other method and the manner in
which such amounts will be determined.
(11) Whether the Corporation or a holder may elect payment of the
principal of (and premium, if any), or interest, if any, on such Debt
Securities in one or more currency or currencies, currency unit or units or
composite currency or currencies, other than that in which such Debt
Securities are denominated or stated to be payable, the period or periods
within which, 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 Debt Securities are denominated or stated to be
payable and the currency or currencies in which such Debt Securities are to
be so payable.
(12) The place or places, if any, other than or in addition to the
City of New York, where the principal of (and premium, if any) or interest,
if any, on such Debt Securities will be payable, where any
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<PAGE> 42
Registered Securities may be surrendered for registration of transfer,
where Debt Securities may be surrendered for conversion and where notices
or demands to or upon the Corporation in respect of such Debt Securities
and the Applicable Indenture may be served.
(13) The denomination or denominations in which such Debt Securities
will be issuable, if other than $1,000 or any integral multiple thereof in
the case of Registered Securities and $5,000 or any integral multiple
thereof in the case of Bearer Securities.
(14) If other than the applicable Trustee, the identity of each
Security Registrar and/or Paying Agent.
(15) The date as of which any Bearer Securities of the series and any
temporary Debt Security issued in global form representing outstanding
Securities of the series will be dated if other than the date of original
issuance of the first Debt Security of the series to be issued.
(16) The applicability, if at all, to such Debt Securities of the
provisions of Article Thirteen of the respective Indenture described under
"Defeasance and Covenant Defeasance" and any provisions in modification of,
in addition to or in lieu of any of the provisions of such Article.
(17) The person to whom any interest on any Registered Security of the
series shall be payable, if other than the person in whose name such
Registered Security (or one or more predecessor securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the person to whom, any interest on any Bearer Security
of the series will 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 Debt Security issued in global form will be paid in other than in
the manner provided in the applicable Indenture.
(18) If such Debt Securities are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Debt Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and/or terms of
such certificates, documents or conditions.
(19) If such Debt Securities will be issuable upon the conversion of
other Securities or upon the exercise of Debt Warrants, the time, manner,
and place for such Debt Securities to be authenticated and delivered.
(20) The provisions, if any, granting special rights to the holders of
such Debt Securities upon the occurrence of such events as may be
specified.
(21) Any deletions from, modifications of or additions to the Events
of Default and in the case of the Subordinated Debt Securities, the
Defaults, or covenants of the Corporation with respect to such Debt
Securities, whether or not such Events of Default, Defaults, or covenants
are consistent with the Events of Default, Defaults, or covenants set forth
in the general provisions of the Applicable Indenture.
(22) The designation of the initial Exchange Rate Agent, if any.
(23) Whether such Subordinated Debt Securities will be convertible
into Capital Securities of the Corporation and, if so, the terms and
conditions upon which such Subordinated Debt Securities will be so
convertible.
(24) Any other terms of such Debt Securities not inconsistent with the
provisions of the Applicable Indenture.
The Corporation may be required to pay Additional Amounts, as contemplated
by Section 1004 of each Indenture, to any holder of Debt Securities who is not a
U.S. person (including any modification to the definition of such term as
contained in the Applicable Indenture as originally executed) in respect of
certain taxes, assessments, or governmental charges and, if so, the Corporation
may have the option to redeem such Debt Securities rather than pay such
Additional Amounts (and the terms of any such option). The Indentures provide
that "Additional Amounts" means any additional amounts which are required by the
Debt Securities or by or pursuant to a resolution of the Board of Directors to
be paid by the Corporation in respect of certain
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<PAGE> 43
taxes imposed on such non-U.S. persons and which are owing to such holders. If
the terms of any series of Debt Securities provide that the Corporation must pay
Additional Amounts in respect thereof, for purposes of this Prospectus, any
reference to the payment of (or premium, if any, on) or interest, if any, on
such Debt Securities will be deemed to include mention of the payment of
Additional Amounts provided for by the terms of such Debt Securities.
Debt Securities may provide for an amount less than the entire principal
amount thereof to be due and payable upon declaration of acceleration of the
maturity thereof ("Original Issue Discount Securities"). (Section 101) Certain
Federal income tax and other considerations pertaining to any such Original
Issue Discount Securities will be described in the Applicable Prospectus
Supplement.
The Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
principal amount thereof and may also be issued under the Indentures upon
exercise of Debt Warrants issued by the Corporation. See "Description of
Securities Warrants."
Unless otherwise indicated in the Applicable Prospectus Supplement, the
covenants contained in the Indentures and the Debt Securities will not afford
holders protection in the event of a sudden decline in credit rating that might
result from a recapitalization, restructuring, or other highly leveraged
transaction.
BOOK-ENTRY PROCEDURES
Upon issuance, the Debt Securities may be issued in the form of one or more
fully registered global securities (the "Global Securities"). Each such Global
Security will be deposited with, or on behalf of, The Depository Trust Company,
as depository (the "Depository"), and registered in the name of the Depository
or a nominee thereof. Unless and until it is exchanged in whole or in part for
Debt Securities in definitive form, no Global Security may be transferred except
as a whole by the Depository to a nominee of such Depository or by a nominee of
such Depository to such Depository.
The Depository has advised the Corporation as follows: The Depository is a
limited-purpose trust company organized under the Banking Law of the State of
New York, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. The Depository was created to hold securities of its participating
organizations ("Participants") and to facilitate the clearance and settlement of
transactions among its Participants in such securities through electronic
book-entry changes in accounts of the Participants, thereby eliminating the need
for physical movement of securities certificates. The Depository's Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations, some of which (and/or their
representatives) own the Depository. Access to the Depository's book-entry
system is also available to others, such as banks, brokers, dealers, and trust
companies that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly. The rules applicable to the
Depository and its Participants are on file with the Commission.
Ownership of beneficial interests in the Debt Securities will be limited to
Participants or persons that may hold interests through Participants
("Beneficial Owners"). The Depository has advised the Corporation that upon the
issuance of Global Securities representing the Debt Securities, the Depository
will credit, on its book-entry registration and transfer system, the
Participants' accounts with the respective principal amounts of the Debt
Securities beneficially owned by such Participants. Ownership of beneficial
interests in the Debt Securities represented by such Global Securities will be
shown on, and the transfer of such ownership interests will be effected only
through, records maintained by the Depository (with respect to interests of
Participants) and on the records of Participants (with respect to interests of
Beneficial Owners). The laws of some states may require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to own, transfer, or pledge beneficial interests in
Debt Securities represented by Global Securities.
So long as the Depository, or its nominee, is the registered owner of a
Global Security, the Depository or its nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities represented
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by such Global Security for all purposes under the Applicable Indenture. Except
as provided below, Beneficial Owners will not be entitled to have the Debt
Securities represented by Global Securities registered in their names, will not
receive or be entitled to receive physical delivery of the Debt Securities in
definitive form, and will not be considered the owners or holders thereof under
the Applicable Indenture. Accordingly, each Participant must rely on the
procedures of the Depository and, if such person is a Beneficial Owner, on the
procedures of the Participant through which such Beneficial Owner owns its
interest, to exercise any rights of a holder under the Applicable Indenture. The
Corporation understands that under existing industry practices, in the event
that the Corporation requests any action of holders, or a Beneficial Owner
desires to give or take any action which a holder is entitled to give or take
under the Applicable Indenture, the Depository would authorize the Participants
holding the relevant beneficial interests to give or take such action, and such
Participants would authorize Beneficial Owners owning through such Participants
to give or take such action or would otherwise act upon the instructions of
Beneficial Owners holding through them.
Payment of principal of (premium, if any) and interest, if any, owing on
Debt Securities registered in the name of the Depository or its nominee will be
made to the Depository or its nominee, as the case may be, as the holder of such
Debt Securities represented by the Global Securities. None of the Corporation,
the Trustee, or any other agent of the Corporation or agent of the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests or for supervising
or reviewing any records relating to such beneficial ownership interests. The
Corporation expects that the Depository, upon receipt of any payment of
principal, premium, if any, or interest in respect of Debt Securities
represented by Global Securities, will credit the accounts of the Participants
with payment in amounts proportionate to their respective beneficial interests
in the Debt Securities represented by such Global Securities as shown on the
records of the Depository. The Corporation also expects that payments by
Participants to Beneficial Owners will be governed by standing customer
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participants subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
principal (premium, if any) and interest to the Depository is the responsibility
of the Corporation, disbursement of such payments to Participants is the
responsibility of the Depository, and disbursement of such payments to the
Beneficial Owners is the responsibility of the Participants.
If (a) the Depository notifies the Corporation that it is at any time
unwilling or unable to continue as depository for the Global Securities or the
Depository ceases to be a clearing agency registered under the Exchange Act, (b)
the Corporation executes and delivers to the Trustee an order of the Corporation
to the effect that the Global Securities shall be transferable and exchangeable,
or (c) an Event of Default has occurred and is continuing with respect to the
Debt Securities, or any event which after notice or lapse of time, or both,
would constitute an Event of Default has occurred and is continuing, the Global
Securities will be transferable or exchangeable for Debt Securities in
definitive form of like tenor and of an equal aggregate principal amount, in
denominations of $1,000 and integral multiples thereof. Such definitive Debt
Securities shall be registered in such name or names as the Depository shall
instruct the Trustee. It is expected that such instructions may be based upon
directions received by the Depository from Participants with respect to
ownership of beneficial interests in Debt Securities represented by such Global
Securities.
In the event of an issuance of Global Securities, procedures for initial
settlement and secondary trades will be set forth in the Applicable Prospectus
Supplement.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Applicable Prospectus Supplement, the
following provisions shall apply to the Subordinated Debt Securities and the
Subordinated Indenture.
In 1992 the Federal Reserve Board issued an interpretation of its capital
adequacy regulations, and a clarification of such interpretation (collectively,
the "Interpretation"), that imposed additional restrictions on subordinated debt
securities in order for such securities to qualify as Tier II capital and which
provided that subordinated debt of bank holding companies issued on or after
September 4, 1992 cannot qualify as Tier II capital unless the subordination of
the debt meets certain criteria, the subordinated debt is not subject to
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<PAGE> 45
covenants and other provisions inconsistent with safe and sound banking
practices and the subordinated debt may be accelerated only upon the bankruptcy
of the bank holding company or the receivership of a major banking subsidiary.
Since the Federal Reserve Board issued the Interpretation, the Corporation has
not issued any subordinated debt securities, but in part in response to the
Interpretation, the Corporation and the Subordinated Trustee have entered into a
new Subordinated Indenture to permit the Corporation to issue Subordinated Debt
Securities that would qualify as Tier II capital, subject to the limits thereon.
As of December 31, 1994, all of the Old KeyCorp Subordinated Indebtedness (as
defined below) and the Society Subordinated Indebtedness (as defined below),
which was incurred by old KeyCorp and Society, respectively, prior to the
issuance of the Interpretation, continued to constitute, and be treated by the
Corporation as, Tier II capital.
The Subordinated Debt Securities will be direct unsecured subordinated
obligations of the Corporation and the indebtedness evidenced by the
Subordinated Debt Securities and the payment of the principal of, premium, if
any, and interest, if any, on the Subordinated Debt Securities will be
subordinated in right of payment to the extent described below to the prior
payment in full of all Senior Indebtedness. (Section 1601) In addition, no
payments shall be made by the Corporation on account of the Subordinated Debt
Securities if there shall have occurred and be continuing a default in any
payment with respect to any Senior Indebtedness, or an event of default with
respect to any Senior Indebtedness permitting the holders thereof to accelerate
the maturity thereof, or if any judicial proceeding shall be pending with
respect to any such default or event of default. (Section 1603) In certain
circumstances relating to an insolvency, bankruptcy, reorganization or similar
proceedings of or relating to the Corporation, or any liquidation, dissolution
or winding-up, or any assignment for the benefit of creditors or marshalling of
assets and liabilities, of the Corporation (an "insolvency event"), the payment
of the principal of, premium, if any, and interest, if any, on the Subordinated
Debt Securities also will be subordinated in right of payment to the extent
described below to the prior payment in full of all Other Senior Obligations (as
defined below). (Section 1614)
The Subordinated Indenture provides that "Senior Indebtedness" shall mean
the principal of (and premium, if any) and interest on (a) all indebtedness of
the Corporation for money borrowed, whether outstanding on the date of execution
of the Subordinated Indenture or thereafter created, assumed, incurred or
guaranteed, except (i) indebtedness on account of all Subordinated Debt
Securities issued under the Subordinated Indenture, indebtedness on account of
all Existing Subordinated Indebtedness (as defined below) and all indebtedness
which specifically by its terms ranks equally with and not prior to the
Subordinated Debt Securities or the Existing Subordinated Indebtedness in right
of payment upon an insolvency event 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 an insolvency event and (b) any
renewals, extensions, modifications and refundings of any such Senior
Indebtedness. The term "indebtedness of the Corporation for money borrowed"
shall mean the principal of (and premium, if any) and interest, if any, on all
(a) indebtedness of the Corporation (including indebtedness of others guaranteed
by the Corporation), whether outstanding on the date of the Subordinated
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. (Section 101) As of December 31, 1994, the Corporation
had outstanding approximately $902.2 million aggregate principal amount of
Senior Indebtedness.
The Subordinated Indenture provides that "Other Senior Obligations" shall
mean any obligation of the Corporation to its creditors, whether outstanding on
the date of execution of the Subordinated Indenture or thereafter created,
assumed, incurred or guaranteed, except (i) Senior Indebtedness, (ii)
indebtedness on account of all Subordinated Debt Securities issued under the
Subordinated 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 Subordinated Debt Securities or the Existing
Subordinated Indebtedness in right of payment upon the happening of an
insolvency event 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 any insolvency event. (Section 101) As of
December 31, 1994, the Corporation had $538.4 million of Other Senior
Obligations outstanding.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness or Other Senior Obligations, and additional
Senior Indebtedness may include indebtedness of the Corporation
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for money borrowed that is senior to the Subordinated Debt Securities, but
subordinate to other obligations of the Corporation. The Senior Debt Securities,
if issued, will constitute Senior Indebtedness.
The Subordinated Indenture provides that "Existing Subordinated
Indebtedness" shall include all indebtedness for borrowed money of the
Corporation under its 8.40% Subordinated Capital Notes due April 1, 1999
(originally issued by old KeyCorp and assumed by the Corporation), 8.125%
Subordinated Notes due June 15, 2002 (originally issued by Society), 8.00%
Subordinated Notes due July 1, 2004 (also originally issued by old KeyCorp and
assumed by the Corporation), Medium-Term Notes Series IV due 1998, 2000, 2002,
and 2003 (originally issued by old KeyCorp and assumed by the Corporation), and
any renewals, extensions, modifications and refundings of any such indebtedness.
All of the Existing Subordinated Indebtedness originally issued by old KeyCorp
and assumed by the Corporation as a result of the merger on March 1, 1994 is
referred to herein as "Old KeyCorp Subordinated Indebtedness" and all of the
Existing Subordinated Indebtedness originally issued by Society is referred to
herein as "Society Subordinated Indebtedness." As of December 31, 1994, the
Corporation had outstanding $565.0 million aggregate principal amount of
Existing Subordinated Indebtedness, which included $365.0 million aggregate
principal amount of Old KeyCorp Subordinated Indebtedness and $200.0 million
aggregate principal amount of Society Subordinated Indebtedness.
The Society Subordinated Indebtedness is subordinated and subject in right
of payment, by its terms, to the prior payment in full of all "senior
indebtedness" (as defined in the indenture relating to the Society Subordinated
Indebtedness, generally, as indebtedness of the Corporation whenever created,
guaranteed, incurred, or assumed, for borrowed money, but excluding the Society
Subordinated Indebtedness and any other indebtedness as to which it is provided
in the instrument evidencing or creating such indebtedness that such
indebtedness is not superior in right of payment to the Society Subordinated
Indebtedness). The Old KeyCorp Subordinated Indebtedness is subordinate and
junior in right of payment, by its terms, to all "senior indebtedness" (as
defined in the indentures relating to the Old KeyCorp Subordinated Indebtedness,
generally, as any obligations of the Corporation to its creditors, whenever
incurred, other than Old KeyCorp Subordinated Indebtedness and any obligation as
to which, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligation is not "senior
indebtedness". Because the Old KeyCorp Subordinated Indebtedness and the Society
Subordinated Indebtedness were issued by old KeyCorp and Society, respectively,
prior to the merger of old KeyCorp and Society, the relationship between the Old
KeyCorp Subordinated Indebtedness and the Society Subordinated Indebtedness is
not expressly provided for in the respective indentures relating to such
indebtedness.
The Subordinated Indenture excludes Existing Subordinated Indebtedness from
the definition of Senior Indebtedness and, accordingly, the Subordinated Debt
Securities will not be subordinated in right of payment to Existing Subordinated
Indebtedness. The Subordinated Indenture also provides that the Subordinated
Debt Securities are not superior in right of payment to any of the Existing
Subordinated Indebtedness and do not constitute "senior indebtedness" as defined
in the indentures governing the Society Subordinated Indebtedness and the Old
KeyCorp Subordinated Indebtedness and, accordingly, the Subordinated Debt
Securities will not have the benefit of the subordination provisions contained
in such indentures.
Upon any payment or distribution of assets to creditors upon an insolvency
event relating to the Corporation, the holders of all Senior Indebtedness will
first be entitled to receive payment in full of all amounts due on or in respect
of all Senior Indebtedness before the holders of the Subordinated Debt
Securities will be entitled to receive any payment on account of the principal
of, premium, if any, or interest, if any, on the Subordinated Debt Securities
(Section 1602) or before the holders of Existing Subordinated Indebtedness will
be entitled to receive any payment on account of the principal of and interest
on such Existing Subordinated Indebtedness. In addition, upon any payment or
distribution of assets to creditors upon an insolvency event, the holders of all
Other Senior Obligations will first be entitled to receive payment in full of
all amounts due on or in respect of such Other Senior Obligations before the
holders of the Old KeyCorp Subordinated Indebtedness will be entitled to receive
any payment on account of the principal of and interest on the Old KeyCorp
Subordinated Indebtedness. If upon any such payment or distribution of assets to
creditors, after giving effect to such subordination provisions applicable to
the Subordinated Debt Securities and the Existing Subordinated Indebtedness in
favor of the holders of Senior Indebtedness and also, in the case of the Old
KeyCorp Subordinated Indebtedness, in favor of the holders of Other Senior
Obligations,
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there remain any amounts of cash, property, or securities available for payment
or distribution in respect of Subordinated Debt Securities ("Excess Proceeds")
and if, at such time, any Entitled Persons (as defined below) in respect of
Other Senior Obligations have not received payment in full of all amounts due on
or in respect of such Other Senior Obligations, then such Excess Proceeds shall
first be applied to pay or provide for the payment in full of such Other Senior
Obligations before any payment or distribution may be made in respect of the
Subordinated Debt Securities. (Section 1614) "Entitled Persons" means persons
who are entitled to payment pursuant to the terms of Other Senior Obligations.
(Section 101)
By reason of the subordination of the Subordinated Debt Securities in favor
of the holders of Senior Indebtedness and Other Senior Obligations, in the event
of a distribution of assets upon an insolvency event involving the Corporation,
the holders of the Subordinated Debt Securities may recover less than the
holders of Senior Indebtedness and the holders of Other Senior Obligations, and
as a result of the differences among the subordination provisions applicable to
the Society Subordinated Indebtedness, the Old KeyCorp Subordinated Indebtedness
and the Subordinated Debt Securities, including differences in the definitions
of senior indebtedness in the various indentures, in an insolvency event
involving the Corporation, any distribution of assets among the holders of
Society Subordinated Indebtedness, Old KeyCorp Subordinated Indebtedness and the
Subordinated Debt Securities may not be ratable.
OWNERSHIP OF VOTING STOCK OF SIGNIFICANT BANKS
The Senior Indenture provides that the Corporation will not sell or
otherwise dispose of, or grant a security interest in, or permit a Significant
Bank (as defined below) to issue, any shares of voting stock of such Significant
Bank (as defined below), unless the Corporation 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 will not apply to (i)
any sale or disposition where the proceeds are invested, within 90 days thereof,
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 Corporation shall be
prohibited from selling or otherwise disposing of, or granting a security
interest in, or permitting 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
Corporation, or (ii) any disposition in exchange for stock of any bank. (Section
1009) The term "Significant Bank" is defined in the Senior Indenture as any
directly or indirectly owned banking subsidiary of the Corporation the assets of
which constitute 10% or more of the consolidated assets of the Corporation
(currently Society National Bank, Key Bank of New York and Key Bank of
Washington.) (Section 101)
The Subordinated Indenture does not contain a similar restriction on the
Corporation's ability to sell or otherwise dispose of or grant a security
interest in, or permit a Significant Bank to issue any shares of voting stock of
any Significant Bank because inclusion of such a provision, under the
Interpretation, would result in the Subordinated Debt Securities issued
thereunder not qualifying as Tier II capital. The holders of Society
Subordinated Indebtedness have the benefit of a covenant in the subordinated
indenture relating thereto substantially similar to the covenant described above
and the holders of Old KeyCorp Subordinated Indebtedness have the benefit of a
covenant in the subordinated indentures relating thereto that restricts the
sale, issuance or disposition of shares of stock of, or mergers or asset sales
involving, certain banking subsidiaries. In order to conform to the
Interpretation, the Subordinated Indenture does not contain either such
covenant.
EVENTS OF DEFAULT
The Senior Indenture. The Senior Indenture defines an "Event of Default"
(with respect to any series of Senior Debt Securities) as any one of the
following events: (a) default in the payment of any interest upon any Senior
Debt Security when such interest becomes due and payable, and continuance of
such default for a period of 30 days; (b) default in the payment of the
principal of (or premium, if any, on) any Senior Debt Security when due and
payable at its maturity; (c) default in the deposit any sinking fund payment
when and as due; (d) failure to perform, or default in the performance or breach
of, any other covenant, warranty, or
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agreement of the Corporation in the Senior Indenture (other than a default in
the performance or breach of a covenant or warranty or agreement included in the
Senior Indenture solely for the benefit of a series of Senior Debt Securities
thereunder other than that series) and continuance of such default or breach for
a period of 60 days after the holders of at least 25% in principal amount of the
outstanding Senior Debt Securities of such series have given written notice as
provided in the Senior Indenture; (e) acceleration of any indebtedness for
borrowed money in an aggregate principal amount exceeding $20 million of the
Corporation or a Significant Bank if such acceleration is not annulled within 10
days after written notice is given by the holders of at least 25% in principal
amount of the outstanding Senior Debt Securities of such series requiring the
Corporation to cause such acceleration to be annulled as provided in the Senior
Indenture; (f) certain events involving the bankruptcy, insolvency, or
reorganization of the Corporation or the receivership or conservatorship of any
Significant Bank, and (g) any other Event of Default with respect to Senior Debt
Securities of that series. (Section 501) Under certain circumstances not
involving a default in the payment of principal of (premium, if any), or
interest, if any, owing on the Senior Debt Securities of any series, or in the
payment of any sinking fund installment, the Senior Trustee shall be protected
in withholding notice to the holders of the Senior Debt Securities of such
series of a default if the Senior Trustee in good faith determines that the
withholding of such notice is in the interests of such holders and the Senior
Trustee shall withhold such notice for certain defaults for a period of 60
calendar days. (Section 601)
If an Event of Default described in clauses (a), (b), (c), (d), (e), or (g)
above with respect to Senior Debt Securities of any series at the time
outstanding occurs and is continuing, either the Senior Trustee or the holders
of at least 25% in principal amount of the outstanding Senior Debt Securities of
that series may declare the principal amount (or, if the Senior Debt Securities
of that series are Original Issue Discount Debt Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms thereof) of all the Senior Debt Securities of that series to be due and
payable immediately. If an Event of Default described in clause (f) above occurs
and is continuing, either the Senior Trustee or the holders of at least 25% in
principal amount of all outstanding Senior Debt Securities then outstanding may
declare the principal amount (or, if the Senior Debt Securities of any series
are Original Issue Discount Debt Securities or Indexed Securities, such portion
of the principal amount as may be specified in the terms thereof) of all the
Senior Debt Securities to be due and payable immediately. At any time after a
declaration of acceleration with respect to Senior Debt Securities of any series
has been made and before a judgment or decree for payment of the money due has
been obtained, the holders of a majority in principal amount of outstanding
Senior Debt Securities of that series may, under certain circumstances, rescind
and annul such acceleration. (Section 502)
The Subordinated Indenture. The Subordinated Indenture defines an "Event
of Default" (with respect to any series of Subordinated Debt Securities) as
certain (a) events involving the bankruptcy, insolvency, or reorganization of
the Corporation or the receivership of a Major Bank (as defined below) and (b)
any other Event of Default provided with respect to Subordinated Debt Securities
of that series. (Section 501) The term "Major Bank" is defined in the
Subordinated Indenture as any directly or indirectly owned banking subsidiary of
the Corporation, the consolidated assets of which constitute 75% or more of the
consolidated assets of the Corporation. As of the date of this Prospectus, no
banking subsidiary of the Corporation constitutes a Major Bank. If an Event of
Default described in clause (a) above occurs and is continuing, either the
Subordinated Trustee or the holders of not less than 25% in principal amount of
the outstanding Subordinated Debt Securities may declare the principal amount
(or, if the Subordinated Debt Securities of any series are Original Issue
Discount Debt Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) of all Subordinated Debt
Securities to be due and payable immediately. If an Event of Default described
in clause (b) above with respect to Subordinated Debt Securities of any series
at the time outstanding occurs and is continuing, either the Subordinated
Trustee or the holders of not less than 25% in principal amount of the
outstanding Subordinated Debt Securities of that series may declare the
principal amount (or, if the Subordinated Debt Securities of that series are
Original Issue Discount Debt Securities or Indexed Securities, such portion of
the principal amount as may be specified in the terms of that series) of all
Subordinated Debt Securities of that series to be due and payable immediately.
At any time after a declaration of acceleration with respect to Subordinated
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the holders of a majority in
principal amount of the outstanding Subordinated Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration. (Section
502)
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Unless otherwise provided in the terms of a series of Subordinated Debt
Securities, there will be no right of acceleration of the payment of principal
of a series of Subordinated Debt Securities upon a default in the payment of
principal of (premium, if any), or interest, if any, owing on, or in the
performance of any covenant or agreement in, the Subordinated Debt Securities of
the particular series, or in the Subordinated Indenture.
In case a Default (as defined below) shall occur and be continuing, the
Subordinated Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the holders of Subordinated Debt Securities by
appropriate judicial proceeding as the Subordinated Trustee deems most
effective. The Subordinated Indenture defines a "Default" (with respect to any
series of Subordinated Debt Securities) as any one of the following events: (a)
an Event of Default; (b) default in the payment of any installment of interest,
if any, on any Subordinated Debt Security when such interest becomes due and
payable, and the continuance of such default for a period of 30 calendar days
(whether or not such payment is prohibited by the subordination provisions); (c)
default in payment of principal of (or premium, if any, on) any Subordinated
Debt Security at its maturity (whether or not such payment is prohibited by the
subordination provisions); (d) failure to deposit any sinking fund payment when
due; (e) failure to perform any other covenants or warranties of the Corporation
in the Subordinated Indenture (other than a covenant or warranty included in the
Subordinated Indenture solely for the benefit of a series of Subordinated Debt
Securities other than that series) continued for a period of 60 calendar days
after holders of at least 25% in principal amount of outstanding Subordinated
Debt Securities have given written notice as provided in the Subordinated
Indenture; and (f) any other Default specified in the Subordinated Indenture
with respect to Subordinated Debt Securities of that series. (Section 503) Under
certain circumstances not involving a default in the payment of principal of
(premium, if any), or interest, if any, owing on the Subordinated Debt
Securities of any series, or in the payment of any sinking fund installment, the
Subordinated Trustee shall be protected in withholding notice to the holders of
the Subordinated Debt Securities of such series of a default if the Subordinated
Trustee in good faith determines that the withholding of such notice is in the
interests of such holders and the Subordinated Trustee shall withhold such
notice for certain defaults for a period of 60 calendar days. (Section 601)
In comparison to the Events of Default provided for in the Subordinated
Indenture and the subordinated indenture relating to the Old Key Subordinated
Indebtedness, the holders of Society Subordinated Indebtedness have the benefit
of broader events of default and related acceleration rights in the subordinated
indenture relating thereto, including, without limitation, any one of the
following "events of default" as defined in the subordinated indenture: (a)
default in the payment of any interest upon the Society Subordinated
Indebtedness when such interest becomes due and payable; (b) default in the
payment of principal of (or premium, if any, on) any Society Subordinated
Indebtedness when due and payable at its maturity; (c) default in the
performance, or breach, of any covenant or warranty of the Corporation; and (d)
acceleration of any indebtedness for borrowed money of the Corporation or a
principal bank (as defined in such subordinated indenture). In order to conform
to the Interpretation, the Subordinated Indenture does not contain any of such
events of default or acceleration rights.
Senior and Subordinated Indentures. Subject to the duty of the Trustee
during default to act with the required standard of care, under both the Senior
Indenture and the Subordinated Indenture, the applicable Trustee will be under
no obligation to exercise any of the rights or powers vested in it by the
Applicable Indenture at the request or direction of any of the holders of Debt
Securities of any series, unless such holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee. (Section 602)
Subject to such provisions for the indemnification of the Trustee and to certain
other conditions, the holders of a majority in aggregate principal amount of
outstanding Senior Debt Securities or outstanding Subordinated Debt Securities
of any series will have the right, subject to certain limitations, to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Senior Trustee or Subordinated Trustee, respectively, or exercising any
trust or power conferred on the Senior Trustee or Subordinated Trustee,
respectively. (Section 512)
No holder of any series of Debt Securities will have any right to institute
any proceeding with respect to the Applicable Indenture, or for the appointment
of a receiver or trustee, or for any remedy thereunder, unless such holder shall
have previously given to the Trustee under the Applicable Indenture written
notice of a continuing Event of Default (in the case of Senior Debt Securities)
or a continuing Event of Default or
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Default (in the case of Subordinated Debt Securities) and unless the holders of
not less than 25% in principal amount of the outstanding Debt Securities of that
series shall have made written request, and offered security or indemnity
reasonably satisfactory to the Trustee, to such Trustee to institute such
proceeding as trustee, and such Trustee shall not have received from the holders
of a majority in aggregate principal amount of the outstanding Debt Securities
of that series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 calendar days. (Section 507) However,
such limitations do not apply to a suit instituted by a holder of a Debt
Security for enforcement of payment of the principal of (premium, if any) or
subject to certain conditions, or interest, if any, on or after the respective
due dates expressed in such Debt Security. (Section 508)
The Corporation is required to furnish to the Trustee annually a statement
as to the performance by the Corporation of certain of its obligations under the
Indentures and as to any default in such performance. (Section 1005)
MODIFICATION AND WAIVER
Modifications and amendments of each of the Senior Indenture and the
Subordinated Indenture may be made by the Corporation and the Trustee under the
Applicable Indenture with the consent of the holders of not less than 66 2/3% in
principal amount of the outstanding Debt Securities of each series issued under
such Indenture and affected by the modification or amendment; provided, however,
that no such modification or amendment may, without the consent of the holders
of each outstanding Debt Security of the series affected thereby, (1) change the
stated maturity of any principal of (or premium, if any), or any installment of
principal of or interest, if any, on, any Debt Security of such series; (2)
reduce the principal amount of, the rate of interest on, or any premium payable
upon the redemption of any, Debt Security of such series; (3) change any
obligation of the Corporation to pay Additional Amounts in respect of any Debt
Security of such series; (4) reduce the portion of principal of an Original
Issue Discount Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the maturity thereof or provable in bankruptcy;
(5) adversely affect any right of repayment at the option of the holder of any
Debt Security of such series; (6) change the place or currency or currencies of
payment of principal of or any premium or interest on any Debt Security of such
series; (7) impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption
or repayment, on or after any Redemption Date or Repayment Date, as the case may
be); (8) adversely affect the right to convert any Debt Security of such series
as may be provided pursuant to the Applicable Indenture; (9) in the case of the
Subordinated Indenture, modify the subordination provisions in a manner adverse
to the holders of the Subordinated Debt Securities of such series; (10) reduce
the percentage in principal amount of the outstanding Debt Securities, the
consent of whose holders is required for modification or amendment of the
Indenture or for waiver of compliance with certain provisions of the Indentures
or for waiver of certain defaults; (11) reduce the requirements for voting or
quorum relating to Bearer Securities; or (12) modify any of the provisions
relating to supplemental indentures requiring the consent of holders, relating
to the waiver of past defaults or relating to the waiver of certain covenants,
except to increase the percentage of such Outstanding Securities required for
such actions or to provide that certain other provisions of such Indenture
cannot be modified or waived without the consent of the holder of each
Outstanding Security affected thereby. (Section 902)
In addition, under the Subordinated Indenture, no modification or amendment
thereof may adversely affect the rights of any holder of Senior Indebtedness or
Other Senior Obligations under Article Sixteen of such Indenture (described
under the caption "Subordination of Subordinated Debt Securities") without the
consent of such holder of Senior Indebtedness or Other Senior Obligations.
(Subordinated Indenture Section 907)
The holders of at least 66 2/3% in principal amount of the outstanding
Senior Debt Securities of any series or outstanding Subordinated Debt Securities
of any series may, on behalf of all holders of the outstanding Senior Debt
Securities of that series or outstanding Subordinated Debt Securities of that
series, respectively, waive compliance by the Corporation with certain
restrictive provisions of the Applicable Indenture. (Senior Indenture Section
1010; Subordinated Indenture Section 1009) The holders of not less than 66 2/3%
in aggregate principal amount of the outstanding Senior Debt Securities of any
series or the outstanding Subordinated Debt Securities of any series may, on
behalf of all holders of the outstanding Senior Debt
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Securities of that series or the outstanding Subordinated Debt Securities of
that series, respectively, waive any past default under the Applicable
Indenture, except a default in the payment of principal (or premium, if any), or
interest, if any, or in the performance of certain covenants. (Section 513)
SATISFACTION AND DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Corporation may discharge certain obligations to holders of Debt
Securities of a series that have not already been delivered to the applicable
Trustee for cancellation and that either have become due and payable or are by
their terms due and payable within one year (or scheduled for redemption within
one year) by irrevocably depositing with the applicable Trustee, in trust, funds
in an amount sufficient to pay the entire indebtedness on such Debt Securities
for principal (and premium, if any) and interest, with respect thereto, to the
date of such deposit (if such Debt Securities have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be. (Section 401)
Each Indenture provides that, if the provisions of Article Thirteen are
made applicable to the Debt Securities of or within a series pursuant to Section
301 thereunder, the Corporation may elect either (i) to defease and be
discharged from any and all obligations with respect to such Debt Securities
(except for the obligations to pay Additional Amounts, if any; to register the
transfer or exchange of such Debt Securities; to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities; to maintain one or more offices or
agencies in respect of such Debt Securities; and to hold moneys for payment in
trust) ("defeasance") or (ii) to be released (a) in the case of any such Debt
Securities that are Senior Debt Securities, from its obligations under Section
1009 of such Indenture or (b) in the case of any such Debt Securities (whether
they are Senior Debt Securities or Subordinated Debt Securities), if so provided
in the Applicable Prospectus Supplement, from its obligations with respect to
any other covenant and, in the case of either (a) or (b) above, any omission to
comply with such obligations will not constitute a Default or an Event of
Default with respect to such Debt Securities ("covenant defeasance"), in either
case upon the irrevocable deposit by the Corporation with the applicable Trustee
(or other qualifying trustee), in trust, of (1) an amount, in the currency or
currencies in which such Debt Securities are then specified as payable at Stated
Maturity, (2) Government Obligations (as defined in the Indenture) applicable to
such Debt Securities (with such applicability being determined on the basis of
the currency in which such Debt Securities are then specified as payable at
Stated Maturity) that, through the payment of principal and interest in
accordance with their terms, will provide money in an amount, or (3) a
combination thereof in an amount, sufficient to pay the principal of (and
premium, if any, on) and interest, if any, on such Debt Securities, and any
mandatory sinking fund or analogous payments thereon, on the scheduled due dates
therefor.
Such a trust may only be established if, among other things, the
Corporation has delivered to the applicable Trustee an opinion of counsel to the
effect that the holders of such Debt Securities to be defeased will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such defeasance or covenant defeasance and will be subject to U.S. 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 or covenant defeasance had not
occurred, and such opinion of counsel, in the case of defeasance under clause
(i) above, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable U.S. federal income tax law occurring after
the date of the Applicable Indenture. (Article Thirteen)
Unless otherwise provided in the Applicable Prospectus Supplement, if,
after the Corporation has deposited funds, Government Obligations, or both to
effect defeasance or covenant defeasance with respect to Debt Securities of a
series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to the terms of such Debt Security to receive payment in a
currency or currency unit other than that in which such deposit has been made in
respect of such Debt Security or (b) a Currency Conversion Event (as defined in
the applicable Indenture) occurs, then the indebtedness represented by such Debt
Security will 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 Debt Security as they become due out of the proceeds
yielded by converting the amount so deposited in respect of such Debt Security
into the currency in which such Debt Security becomes payable as a result of
such election or such Currency Conversion Event based on the applicable Market
Exchange Rate. (Section 1305) Unless otherwise provided in the Applicable
Prospectus Supplement, all payments of principal of (and premium, if any) and
interest, if any, on any Debt
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Security that is payable in a foreign currency with respect to which a Currency
Conversion Event occurs shall be made in U.S. dollars. (Section 312)
In the event the Corporation effects covenant defeasance with respect to
any Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default other than the Event of
Default described in clause (d) under "Events of Default" with respect to the
obligations described under "Ownership of Voting Stock of Significant Banks"
above (which obligations would no longer be applicable to such Debt Securities)
or described in clause (d) or (g) under "Events of Default" with respect to any
other covenant with respect to which there has been defeasance, the amount in
such currency in which such Debt Securities are payable, and Government
Obligations on deposit with the applicable Trustee will be sufficient to pay
amounts due on such Debt Securities at the time of their Stated Maturity but may
not be sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, the Corporation
would remain liable to make payment of such amounts due at the time of
acceleration.
If the applicable Trustee or any Paying Agent is unable to apply any money
in accordance with the applicable Indenture by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Corporation's obligations under such
Indenture and such Debt Securities shall be revived and reinstated as though no
deposit had occurred pursuant to such Indenture, until such time as such Trustee
or Paying Agent is permitted to apply all such money in accordance with such
Indenture; provided, however, that, if the Corporation makes any payment of
principal of (or premium, if any) or interest on any such Debt Security or
coupon following the reinstatement of its obligations, the Corporation shall be
subrogated to the rights of the holders of such Debt Securities to receive such
payment from the money held by such Trustee or Paying Agent.
The Applicable Prospectus Supplement may further describe the provisions,
if any, permitting defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series and any related coupons.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Corporation, without the consent of the holders of any of the Debt
Securities under the Indentures, may consolidate with or merge into any other
person, may convey, transfer, or lease its assets substantially as an entirety
to any person, or may permit any person to merge into or consolidate with the
Corporation or convey, transfer or lease its property and assets substantially
as an entirety to the Corporation, provided that: (1) any successor or purchaser
is a corporation organized under the laws of any domestic jurisdiction; (2) any
such successor or purchaser assumes the Corporation's obligations on such Debt
Securities and under the Indentures; (3) after giving effect to the transaction,
with respect to any Senior Debt Securities, no Event of Default and no event
which, after notice of or lapse of time or both would become an Event of Default
or, with respect to any Subordinated Debt Securities, no Default and no event
that, after notice or lapse of time, would become an Event of Default or a
Default, shall have occurred and be continuing; (4) with respect to the Senior
Indenture, if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, shares of voting stock of any Significant Bank
would become subject to a security interest not permitted under the Senior
Indenture, the Corporation or successor, as the case may be, shall take such
steps as shall be necessary effectively to secure the Senior Debt Securities
equally and ratably with (or prior to) all indebtedness secured thereby; and (5)
certain other conditions are met. (Section 801)
CONVERSION
The holders of Subordinated Debt Securities of a specified series that are
convertible into Capital Securities ("Subordinated Convertible Debt Securities")
may be entitled or, if so provided in the Applicable Prospectus Supplement, may
be required at such time or times specified in the Applicable Prospectus
Supplement relating to such Subordinated Convertible Debt Securities, subject to
prior redemption, repayment, or repurchase, to convert any Subordinated
Convertible Debt Securities of such series into Capital Securities, at the
conversion price set forth in such Applicable Prospectus Supplement, subject to
adjustment and to such other terms as are set forth in such Applicable
Prospectus Supplement. No separate consideration
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will be received for any Capital Securities issued upon conversion of
Subordinated Convertible Debt Securities.
RISK FACTORS OF DEBT SECURITIES DENOMINATED IN FOREIGN CURRENCIES
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in the foreign currency market, the imposition of
foreign exchange controls, and potential illiquidity in the secondary market.
These risks will vary depending upon the currency involved. These risks may be
more fully described in the Applicable Prospectus Supplement.
CONCERNING THE TRUSTEE
Bankers Trust Company is Trustee under both the Senior Indenture and the
Subordinated Indenture. The Corporation and certain of its subsidiaries maintain
deposit accounts and conduct other banking transactions with Bankers Trust
Company in the ordinary course of business. Bankers Trust Company also serves as
trustee under a senior indenture of old KeyCorp.
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DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the shares of Preferred Stock,
which sets forth certain general terms and provisions of the Preferred Stock to
which any Prospectus Supplement may relate, does not purport to summarize any
particular series of Preferred Stock. Certain terms of any offered series of
Preferred Stock will be described in the Applicable Prospectus Supplement
relating to such series of Preferred Stock. If so indicated in the Applicable
Prospectus Supplement, the terms of any series may differ from the terms set
forth below. The description of certain provisions of the Preferred Stock set
forth below does not purport to be complete and is subject to and qualified in
its entirety by reference to the Amended and Restated Articles of Incorporation
(the "Articles") and the Certificate of Amendment of the Amended and Restated
Articles of Incorporation of the Corporation that relates to a particular series
of Preferred Stock (the "Certificate") which will be filed with the Secretary of
State of the State of Ohio at or prior to the time of the sale of the related
series of Preferred Stock and which will be filed as an exhibit to or
incorporated by reference in the Registration Statement.
GENERAL
The Corporation is authorized by its Articles to issue from time to time up
to 25,000,000 shares of Preferred Stock, with a par value of $1 each. All shares
of Preferred Stock must be of equal rank and the express terms thereof must be
identical, except in respect of the terms that may be fixed by the Board of
Directors as described below, and each share of each series shall be identical
with all other shares of such series, except that in the case of a series as to
which dividends are cumulative, the dates from which dividends are cumulative
may vary to reflect differences in the dates of issue. The Preferred Stock will,
when issued against payment therefor, be fully paid and nonassessable. The
Corporation currently has issued and outstanding 1,280,000 shares of 10%
Cumulative Preferred Stock. See "Preferred Stock Outstanding" below for a
discussion of the 10% Cumulative Preferred Stock.
The Board of Directors is authorized by the Articles to cause shares of
Preferred Stock to be issued in one or more series and with respect to each such
series to fix: (1) the designation of the series, which may be by distinguishing
number, letter, or title; (2) the authorized number of shares of such series,
which number the Board of Directors may, except to the extent otherwise provided
in the creation of the series, from time to time, increase or decrease, but not
below the number of shares thereof then outstanding; (3) the dividend rate or
rates (which may be fixed or adjustable) of the shares of the series; (4) the
dates on which dividends, if declared, shall be payable and, in the case of
series on which dividends are cumulative, the dates from which dividends shall
be cumulative; (5) the redemption rights and price or prices, if any, for shares
of the series, (6) the amount, terms, conditions, and manner of operation of any
retirement or sinking fund to be provided for the purchase or redemption of
shares of the series; (7) the amounts payable on shares of the series in the
event of any liquidation, dissolution, or winding up of the affairs of the
Corporation; (8) whether the shares of the series shall be convertible into
Common Shares or shares of any other series or class, and, if so, the
specification of such other class or series, the conversion price or prices or
rate or rates, any adjustment thereof, and all other terms and conditions upon
which such conversion may be made; and (9) the restrictions, if any, upon the
issue of any additional shares of the same series or of any other class or
series. The Board of Directors is authorized to amend from time to time the
Articles fixing, with respect to any unissued shares of Preferred Stock, the
matters described in clauses (1) through (9). Each series of Preferred Stock
will be offered on such of the above terms and at such offering price as
specified in the Applicable Prospectus Supplement.
As described under "Depositary Shares" below, the Corporation may, at its
option, elect to offer Depositary Shares (evidenced by depositary receipts)
which will represent a fraction to be specified in the Applicable Prospectus
Supplement relating to the particular series of Preferred Stock of a share of
the particular series of Preferred Stock issued and deposited with the
Depositary (as defined below), in lieu of offering full shares of such series of
the Preferred Stock.
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CERTAIN DEFINITIONS
For the purposes of this Description of Preferred Stock:
Whenever reference is made to shares "ranking prior to the Preferred
Stock," such reference shall mean and include all shares of the Corporation in
respect of which the rights of the holders thereof either as to the payment of
dividends or as to distribution in the event of a liquidation, dissolution, or
winding up of the Corporation are given preference over the rights of the
holders of Preferred Stock.
Whenever reference is made to shares "on a parity with the Preferred
Stock," such reference shall mean and include all shares of the Corporation in
respect of which the rights of the holders thereof as to the payment of
dividends or as to distributions in the event of a liquidation, dissolution, or
winding up of the Corporation rank on an equality or parity with the rights of
the holders of Preferred Stock.
Whenever reference is made to shares "ranking junior to the Preferred
Stock," such reference shall mean and include all shares of the Corporation in
respect of which the rights of the holders thereof as to the payment of
dividends and as to distributions in the event of a liquidation, dissolution, or
winding up of the Corporation are junior or subordinate to the rights of the
holders of Preferred Stock.
DIVIDENDS
The holders of Preferred Stock of each series, in preference to the holders
of Common Shares and of any other class of shares of the Corporation ranking
junior to the Preferred Stock shall be entitled to receive, out of any funds
legally available for the payment of dividends and when and as declared by the
Board of Directors, cash dividends at the rates set forth in the Applicable
Prospectus Supplement, and no more, payable on the dividend payment dates fixed
for such series set forth therein (each, a "Dividend Payment Date"). If any date
specified as a Dividend Payment Date is not a business day, dividends, if
declared, on the Preferred Stock will be paid on the immediately succeeding
business day, without interest. Such rates may be fixed or variable. If
variable, the formula used for determining the dividend rate for each dividend
period will be set forth in the Applicable Prospectus Supplement. Dividends on
the Preferred Stock may be cumulative or non-cumulative as provided in the
Applicable Prospectus Supplement.
No full dividends may be paid upon, declared, or set apart for the payment
of dividends on shares ranking on a parity with or junior to the Preferred Stock
unless dividends shall have been paid or set apart for payment on the Preferred
Stock.
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Corporation or the holder thereof upon terms and at
the redemption prices set forth in the Applicable Prospectus Supplement relating
to such series.
RIGHTS UPON LIQUIDATION
The holders of shares of Preferred Stock of any series shall, in case of
liquidation, dissolution, or winding up of the Corporation, be entitled to
receive in full out of the assets of the Corporation, including its capital,
before any amount shall be paid or distributed among the holders of Common
Shares or any other shares ranking junior to the Preferred Stock, the amounts
set forth in the Applicable Prospectus Supplement with respect to shares of such
series, plus all accrued and unpaid dividends for such series, in accordance
with the terms set forth in the Applicable Prospectus Supplement.
CONVERSION
The holders of specified series of Preferred Stock may be entitled or, if
so provided in the Applicable Prospectus Supplement, may be required, to convert
such shares into Common Shares or any other class or series of Capital
Securities or, in the case of Preferred Stock that is convertible at the option
of the Corporation, other debt securities of the Corporation, at such conversion
price or prices and on such other terms as may be set forth in the Applicable
Prospectus Supplement relating to such series of Preferred Stock.
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VOTING RIGHTS
The holders of Preferred Stock shall not be entitled to vote upon matters
presented to the shareholders, except as provided herein or as required by law.
If the Corporation shall fail to pay full cumulative dividends on any
series of Preferred Stock or the 10% Cumulative Preferred Stock (if then
outstanding) for six quarterly dividend payment periods, whether or not
consecutive, the number of directors will be increased by two, and the holders
of all outstanding series of Preferred Stock and the 10% Cumulative Preferred
Stock, voting as a single class without regard to series, will be entitled to
elect such additional two directors until full cumulative dividends for all past
dividend payment periods on all series of Preferred Stock and the 10% Cumulative
Preferred Stock have been paid or declared and set apart for payment or until
non-cumulative dividends have been paid regularly for at least one full year.
Such right to vote separately as a class to elect directors shall, when vested,
be subject, always, to the same provisions for the vesting of such right to
elect directors separately as a class in the case of future dividend defaults.
At any time when such right to elect directors separately as a class shall have
so vested, the Corporation may, and upon the written request of the holders of
record of not less than twenty percent of the total number of shares of the
Preferred Stock and 10% Cumulative Preferred Stock of the Corporation then
outstanding shall, call a special meeting of shareholders for the election of
such directors. In the case of such a written request, such special meeting
shall be held within ninety days after the delivery of such request and, in
either case, at the place and upon the notice provided by law and in the
Regulations of the Corporation, provided that the Corporation shall not be
required to call such a special meeting if such request is received less than
120 days before the date fixed for the next ensuing annual meeting of
shareholders of the Corporation. Directors elected as aforesaid shall serve
until the next annual meeting of shareholders of the Corporation or until their
respective successors shall be elected and qualify. If, prior to the end of the
term of any director elected as aforesaid, a vacancy in the office of such
director shall occur during the continuance of a default in dividends on any
series of Preferred Stock by reason of death, resignation, or disability, such
vacancy shall be filled for the unexpired term by the appointment by the
remaining director or directors elected as aforesaid of a new director for the
unexpired term of such former director.
Under existing interpretations of the Federal Reserve Board and the OTS, if
the holders of any series of Preferred Stock (including, in this case, the 10%
Cumulative Preferred Stock) become entitled to vote for the election of
directors because dividends on such series are in arrears, such series may then
be deemed a "class of voting securities" and a holder of 25% or more of such
series (or a holder of 5% or more if such holder otherwise exercises a
"controlling influence" over the Corporation) may then be subject to regulation
as a bank holding company in accordance with the BHCA, and as a savings and loan
holding company in accordance with the HOLA. In addition, at such time, (i) any
bank holding company or foreign bank with a U.S. presence may be required to
obtain the approval of the Federal Reserve Board under the BHCA to acquire or
retain 5% or more of such series and (ii) any person other than a bank holding
company may be required to obtain the approval of the Federal Reserve Board and
the OTS under the CBCA to acquire or retain 10% or more of such series.
The affirmative vote or consent of the holders of at least two-thirds of
the then outstanding shares of Preferred Stock, given in person or by proxy,
either in writing or at a meeting called for the purpose at which the holders of
Preferred Stock shall vote separately as a class, shall be necessary to effect
any amendment, alteration, or repeal of any of the provisions of the
Corporation's Articles or the Regulations of the Corporation which would be
substantially prejudicial to the voting powers, rights, or preferences of the
holders of Preferred Stock (but so far as the holders of Preferred Stock are
concerned, such action may be effected with such vote or consent); provided,
however, that neither the amendment of the Corporation's Articles to authorize
or to increase the authorized or outstanding number of shares of any class
ranking junior to or on a parity with the Preferred Stock, nor the amendment of
the Regulations so as to change the number of directors of the Corporation shall
be deemed to be substantially prejudicial to the voting powers, rights, or
preferences of the holders of Preferred Stock (and any such amendment referred
to in this proviso may be made without the vote or consent of the holders of the
Preferred Stock); and provided further that if such amendment, alteration, or
repeal would be substantially prejudicial to the rights or preferences of one or
more but not all then outstanding series of Preferred Stock, the affirmative
vote or consent of the holders of at least two-thirds of the then outstanding
shares of the series so affected shall be required.
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The affirmative vote or consent of the holders of at least two-thirds of
the then outstanding shares of Preferred Stock and, if the holders of 10%
Cumulative Preferred Stock are entitled to vote on such matter pursuant to
Section 5 of Part A of Article IV of the Articles, the 10% Cumulative Preferred
Stock, given in person or by proxy, either in writing or at a meeting called for
the purpose at which the holders of Preferred Stock and, if applicable, 10%
Cumulative Preferred Stock shall vote as a single class shall be necessary to
effect any one or more of the following:
(a) The authorization of, or the increase in the authorized number of,
any shares of any class ranking prior to the Preferred Stock; or
(b) The purchase or redemption for sinking fund purposes or otherwise
of less than all of the then outstanding Preferred Stock except in
accordance with a purchase offer made to all holders of record of Preferred
Stock, unless all dividends on all Preferred Stock then outstanding for all
previous dividend periods shall have been declared and paid or declared and
funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.
PREEMPTIVE RIGHTS
No holder of Preferred Stock is entitled as a matter of right to subscribe
for or purchase any part of any issue of shares of the Corporation, of any class
whatsoever, or any part of any issue of securities convertible into shares of
the Corporation, of any class whatsoever, and whether issued for cash, property,
services, or otherwise.
REPURCHASE OF SHARES
Subject to the express terms of any series of Preferred Stock or the 10%
Cumulative Preferred Stock, the Corporation, by action of its Board of Directors
and without action by its shareholders, is authorized by its Articles to
purchase any shares of any series of Preferred Stock from time to time in
accordance with the provisions of the Ohio General Corporation Law. Such
purchases may be made either in the open market, or at public or private sales,
in such manner and amounts and at such price as the directors shall, from time
to time determine.
PREFERRED STOCK OUTSTANDING
The Corporation has issued and outstanding 1,280,000 shares of the 10%
Cumulative Preferred Stock, which is the only class or series of Preferred Stock
of the Corporation currently outstanding. Dividends, which are cumulative, are
payable on the 10% Cumulative Preferred Stock quarterly on March 31, June 30,
September 30, and December 31 of each year at the rate per annum equal to 10% of
the liquidation preference of $125, or $12.50, per share. The 10% Cumulative
Preferred Stock ranks prior to the Common Shares as to payment of dividends and
upon distribution in the event of a liquidation, dissolution, or winding up of
the Corporation. Unless full cumulative dividends on the 10% Cumulative
Preferred Stock have been paid for all past dividend payment periods, no
dividends (other than in Common Shares or another stock ranking junior to the
10% Cumulative Preferred Stock as to dividends and upon liquidation) shall be
declared or paid or set aside for payment nor shall any other distribution be
made upon the Common Shares or on any other stock of the Corporation ranking
junior to or on a parity with the 10% Cumulative Preferred Stock as to dividends
or upon liquidation. Except as expressly required by applicable law, the holders
of shares of 10% Cumulative Preferred Stock are not entitled to vote on matters
presented to shareholders except under certain circumstances, including (a) if
the Corporation fails to pay full cumulative dividends on the 10% Cumulative
Preferred Stock or on any class of Preferred Stock for six quarterly dividend
periods, whether or not consecutive, in which case the number of directors of
the Corporation will be increased by two and the holders of all outstanding
shares of 10% Cumulative Preferred Stock, together with the holders of all other
outstanding classes of Preferred Stock, will be entitled to vote separately as a
single class without regard to series to elect such additional two Directors
until full cumulative dividends for all past dividend payment periods on all
classes of Preferred Stock and the 10% Cumulative Preferred Stock have been paid
or declared and set apart for payment, and (b) the adoption of any amendment to
the Corporation's Articles that would adversely affect
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the powers, preferences, privileges, or rights of the shares of the 10%
Cumulative Preferred Stock, subject to certain exceptions.
The holders of shares of 10% Cumulative Preferred Stock have no preemptive
rights to acquire any additional shares of the Corporation.
The 10% Cumulative Preferred Stock is not redeemable prior to June 30,
1996. On and after such date, the 10% Cumulative Preferred Stock will be
redeemable in cash at the option of the Corporation, in whole or in part, from
time to time upon not less than 30 nor more than 60 days' notice, with the prior
approval of the Federal Reserve Board (if such approval is required), at $125
per share plus all accrued and unpaid dividends to the date fixed for
redemption. Shares of the 10% Cumulative Preferred Stock that are redeemed will
be deemed retired.
The 10% Cumulative Preferred Stock is not convertible into shares of any
other class or series of the capital stock of the Corporation.
In the event of any voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation, the holders of shares of 10% Cumulative Preferred
Stock will be entitled to receive out of the assets of the Corporation available
for distribution to shareholders, before any distribution of assets is made to
holders of Common Shares or any other class of stock of the Corporation ranking
junior to the 10% Cumulative Preferred Stock upon liquidation, liquidating
distributions in the amount of $125 per share plus accrued and unpaid dividends.
If, upon any voluntary or involuntary liquidation, dissolution, or winding up of
the Corporation the amounts payable with respect to the 10% Cumulative Preferred
Stock and any other shares of stock of the Corporation ranking as to any such
distribution on a parity with the 10% Cumulative Preferred Stock are not paid in
full, the holders of shares of the 10% Cumulative Preferred Stock and of such
other shares will share ratably in any such distribution of assets of the
Corporation in proportion to the full respective preferential amounts to which
they are entitled.
The 10% Cumulative Preferred Stock is evidenced by depositary shares, each
of which represents a one-fifth interest in a share of 10% Cumulative Preferred
Stock. The 10% Cumulative Preferred Stock is deposited under a Deposit
Agreement, dated July 27, 1991 between the Corporation and Society National
Bank, successor to The Chase Manhattan Bank, as depositary.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts (as defined below) does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
forms of Deposit Agreement and Depositary Receipt relating to each series of the
Preferred Stock, which are filed with the Commission as exhibits to the
Registration Statement of which this Prospectus is a part, copies of which may
be obtained from the Corporation upon request.
GENERAL
The Corporation may elect to offer fractional shares of Preferred Stock
rather than full shares of Preferred Stock. In such event, the Corporation will
cause depositary receipts ("Depositary Receipts") to be issued for Depositary
Shares, each of which will represent a fraction (to be set forth in the
Applicable Prospectus Supplement relating to a particular series of Preferred
Stock) of a share of a particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Corporation and a bank or trust company selected by the Corporation
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 (the
"Depositary"). Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of a
share of Preferred Stock represented by such Depositary Share, to all the
rights, preferences, and
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privileges of the Preferred Stock represented thereby, including any and all
dividend, voting, redemption, conversion, and liquidation rights provided for in
the Certificate.
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement. Depositary Receipts will be distributed to
those persons purchasing the fractional shares of Preferred Stock in accordance
with the terms of the offering.
Pending the preparation of definitive Depositary Receipts, the Depositary
will, upon the written order of the Corporation or any holder of Preferred
Stock, execute and deliver temporary Depositary Receipts which are substantially
identical to, and entitle the holders thereof to all the benefits pertaining to,
the definitive Depositary Receipts. Definitive Depositary Receipts will be
prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts upon surrender
of the temporary Depositary Receipts at the Depositary's principal office or
such other office or offices, if any, as the Depositary may designate, at the
Corporation's expense and without charge to the holder.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute cash dividends or other cash distributions
received in respect of the deposited shares of Preferred Stock, including any
cash received upon redemption of any shares of Preferred Stock, to the record
holders of Depositary Receipts relating to such Preferred Stock in such amounts
as are, as nearly as practicable, in proportion to the numbers of Depositary
Shares evidenced by the Depositary Receipts held by such holders.
In the event of a distribution other than in cash on the deposited shares
of Preferred Stock, the Depositary will distribute property received by it to
the record holders of Depositary Receipts in such amounts as are, as nearly as
practicable, in proportion to the numbers of such Depositary Shares evidenced by
the Depositary Receipts held by such holders, in any manner that the Depositary
and the Corporation may deem equitable and practicable for accomplishing such
distribution. If the Depositary, after consultation with the Corporation,
determines that such distribution cannot be made proportionately or that it is
otherwise not feasible to make such distribution, it may, with the approval of
the Corporation, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the public or private sale of
the property received. The Depositary will distribute or make available for
distribution the net proceeds of any such sale to the holders entitled thereto.
REDEMPTION OF PREFERRED STOCK
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Corporation or the holder thereof, as set forth in
the Applicable Prospectus Supplement relating to such series of Preferred Stock.
Whenever the Corporation elects to redeem shares of Preferred Stock held by the
Depositary, the Depositary will redeem as of the same redemption date the number
of Depositary Shares representing shares of Preferred Stock so redeemed,
provided the Corporation shall have paid in full to the Depositary the
redemption price of the Preferred Stock to be redeemed. In the event of such a
redemption at the option of the Corporation, the Depositary Shares will be
redeemed from the proceeds received by the Depositary resulting from the
redemption of such Preferred Stock held by the Depositary. If fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed will be selected by the Depositary by lot or pro rata or by any other
equitable method, in each case as may be determined by the Corporation.
In addition, although Depositary Shares, as such, are not redeemable at the
option of the holder of Depositary Receipts evidencing Depositary Shares, such
holder may, if so specified in the Applicable Prospectus Supplement relating to
an offering of Depositary Shares, surrender Depositary Receipts with written
instructions to the Depositary to instruct the Corporation to cause the
redemption of any specified number of whole or fractional shares of Preferred
Stock represented by the Depositary Shares evidenced by such Depositary
Receipts. The Corporation will thereafter cause the redemption of the Preferred
Stock at the redemption price utilizing the same procedures as those provided
for delivery of Preferred Stock to effect such redemption.
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In the event of redemption at the option of either the Corporation or the
holders of Depositary Receipts, the redemption price per Depositary Share will
be 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 an amount equal to any accrued and unpaid dividends thereon to
the date of such redemption.
Unless the Corporation defaults in the payment of the redemption price of
any Preferred Stock called for redemption by the Corporation or the holder
thereof and unless otherwise specified in the Certificate, (i) from and after
the redemption date, all dividends in respect of the shares of Preferred Stock
called for redemption will cease to accrue, the Depositary Shares so called for
redemption shall no longer be deemed outstanding, and, except as set forth in
clause (ii) below, all rights of holders of such Depositary Shares shall
terminate except for the right to receive the redemption price thereof, and (ii)
in the case of any redemption at the option of the Corporation or at the option
of the holder, any rights of conversion in respect of such shares of Preferred
Stock shall terminate on the close of business on the redemption date.
CONVERSION OF PREFERRED STOCK AT THE OPTION OF THE CORPORATION
The holders of Depositary Shares may be obligated at any time or upon
maturity of the Preferred Stock represented by the Depositary Shares to convert
the Depositary Shares for the number of whole shares of Capital Securities or
other debt securities of the Corporation (as the case may be, in accordance with
the terms of such series of Preferred Stock) in proportion to the number of
shares of Preferred Stock represented by the Depositary Shares. Whenever the
Corporation exercises its option to convert shares of Preferred Stock held by
the Depositary in whole or in part, the Depositary will convert as of the same
conversion date the number of Depositary Shares representing shares of Preferred
Stock so converted provided the Corporation shall have issued and deposited with
the Depositary the Capital Securities or other debt securities for the Preferred
Stock to be converted and paid in full to the Depositary any accrued and unpaid
dividends thereon. In the event of such conversion at the option of the
Corporation, the Depositary Shares will be converted at a conversion rate per
Depositary Share equal to the applicable 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 Corporation in respect of dividends which on the conversion date have
accrued on the shares of Preferred Stock to be so converted and have not
theretofore been paid. If fewer than all the outstanding Depositary Shares are
to be converted, the Depositary Shares to be converted will be selected by the
Depositary by lot or pro rata or by any other equitable method, in each case as
may be determined by the Corporation.
From and after the dated fixed for conversion, all dividends in respect of
the shares of Preferred Stock called for conversion shall cease to accrue to the
extent set forth in the Certificate, any rights of conversion or redemption at
the option of the holders of the Depositary Shares represented by Depositary
Receipts evidencing the shares of Preferred Stock called for conversion shall
terminate at the close of business on such conversion date to the extent set
forth in the Certificate, the Depositary Shares called for conversion will no
longer be deemed to be outstanding, and all rights of the holders of the
Depositary Receipts evidencing the Depositary Shares will cease, except the
right to receive the securities payable upon such conversion and any money and
other property, if any, to which the holders of such Depositary Shares were
entitled upon such conversion upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares.
CONVERSION OF PREFERRED STOCK AT THE OPTION OF THE HOLDER
The Depositary Shares, as such, are not convertible at the option of the
holder thereof into Common Shares or any other securities or property of the
Corporation. Nevertheless, if so specified in the Applicable Prospectus
Supplement relating to an offering of Depositary Shares, any holder of
Depositary Shares representing any series of Preferred Stock which is
convertible at the option of the holder, upon surrender of the Depositary
Receipts therefor and delivery of instructions to the Depositary, may cause the
Corporation to convert any specified number of shares of Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipts into
the number of whole Common Shares or whole number of shares of any other class
or series of Capital Securities of the Corporation (as the case may be, in
accordance with the terms of
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such series of the Preferred Stock) as are issuable, as provided in the
Certificate upon conversion of such shares of Preferred Stock at the conversion
rate (as such term is defined in the Certificate) then in effect, as such
conversion rate may be adjusted by the Corporation from time to time as provided
in the Certificate. In the event that a holder delivers Depositary Receipts to
the Depositary for conversion which in the aggregate are convertible either into
less than one whole Common Share or one whole share of any other class or series
of Capital Securities or into any number of whole Common Shares or whole shares
of any other class or series of Capital Securities plus an excess constituting
less than one whole Common Share or one whole share of any other class or series
of Capital Securities, the holder shall receive payment in lieu of such
fractional Common Shares or fractional shares of such Capital Securities.
WITHDRAWAL OF PREFERRED STOCK
Any holder of Depositary Receipts may, upon surrender of such Depositary
Receipts therefor to the Depositary (unless the related Preferred Stock has
previously been called for redemption or conversion at the option of the
Corporation), receive the number of whole shares of the related series of
Preferred Stock and any money and other property represented by such Depositary
Receipts. Holders of Depositary Receipts making such withdrawals will be
entitled to receive whole shares of Preferred Stock on the basis set forth in
the Applicable Prospectus Supplement for such series of Preferred Stock, but
holders of such whole shares of Preferred Stock will not thereafter be entitled
to deposit such Preferred Stock under the Deposit Agreement or to receive
Depositary Shares therefor. If the Depositary Shares represented by the
Depositary Receipts surrendered by the holder in connection with such withdrawal
exceed the number of Depositary Shares that represent the number of whole shares
of Preferred Stock to be withdrawn, the Depositary will deliver to such holder
at the same time a new Depositary Receipt evidencing such excess number of
Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of shares of the
Preferred Stock are entitled to vote, the Depositary will, as soon as
practicable thereafter, mail the information contained in such notice of meeting
to the record holders of the Depositary Receipts representing the Depositary
Shares relating to such Preferred Stock. Each record holder of such Depositary
Receipt on the record date (which will be the same date as the record date of
the Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Preferred Stock
represented by such holder's Depositary Shares. Upon the written request of a
record holder of such Depositary Receipt, the Depositary will, insofar as
practicable, vote or cause to be voted the amount of Preferred Stock represented
by such Depositary Shares evidenced by such Depositary Receipt in accordance
with such instructions, and the Corporation will agree to take all reasonable
actions which may be deemed necessary by the Depositary in order to enable the
Depositary to do so. The Depositary will abstain from voting shares of the
Preferred Stock to the extent it does not receive specific instructions from the
holder of Depositary Receipts evidencing the Depositary Shares representing such
Preferred Stock. The Depositary will not be required to exercise discretion in
voting any Preferred Stock represented by the Depositary Shares evidenced by
such Receipts.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Corporation and the Depositary in any respect
that they may deem necessary or desirable. However, any amendment which
materially and adversely alters the rights of the holders of Depositary Receipts
or which would be materially and adversely inconsistent with the rights granted
to the holders of the Preferred Stock will not be effective unless such
amendment has been approved by the holders of at least a majority of the
Depositary Shares then outstanding.
The Deposit Agreement automatically terminates if (i) all outstanding
Depositary Shares have been redeemed, converted, or withdrawn; (ii) each share
of Preferred Stock has been converted into Common Shares or shares of any other
class or series of Capital Securities; or (iii) there has been a final
distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution, or winding up of the Corporation and such distribution
has been distributed to the holders of Depositary Receipts. The Deposit
Agreement also
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may be terminated by the Corporation at any time upon not less than 60 days
prior written notice to the Depositary, in which case the Depositary will, upon
a date not later than 30 days after the date of such notice, deliver to the
record holders, upon surrender of the Depositary Receipts, such number of whole
shares of Preferred Stock as are represented by such Depositary Receipts. In the
event that such Depositary Receipts represent a fractional number of shares of
Preferred Stock, the Depositary will aggregate all interests in such fractional
shares, and, with the approval of the Corporation, 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, after which the Depositary
will distribute or make available for distribution to the holders of such
Depositary Receipts, as the case may be, the net proceeds of any such sale.
CHARGES OF DEPOSITARY AND OTHER TAXES AND CHARGES
The Corporation will pay all fees and expenses of the Depositary, and 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 Depositary Receipts, all withdrawals of shares of Preferred Stock by holders
of Depositary Shares, any redemption or conversion of the Preferred Stock at the
option of such holder and any redemption or conversion of the Preferred Stock at
the option of the Corporation. The Corporation will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. Holders of Depositary Shares will pay such other
transfer and other taxes and governmental charges as are expressly provided in
the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Corporation
notice of its election to do so, and the Corporation may at any time remove the
Depositary by notice of such removal delivered to the Depositary, any such
resignation or removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment. Such successor Depositary
must be appointed within 60 calendar days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Receipts all
notices and reports from the Corporation which are delivered to the Depositary
in its capacity as holder of Preferred Stock and which the Corporation is
required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Corporation will be liable to any holder of
any Depositary Receipt if it is prevented or delayed by reason of any present or
future law or regulation of the United States or of any other governmental
authority, or by reason of any present or future provision of the Articles or
the Certificate or by any other circumstance beyond its control in performing
its obligations under the Deposit Agreement or by reason of any exercise of, or
failure to exercise, any discretion provided for in the Deposit Agreement. The
obligations and liabilities of the Corporation to holders of Depositary Receipts
and the Depositary under the Deposit Agreement or any Depositary Receipt will be
limited to performance in good faith of such duties as are specifically set
forth in the Deposit Agreement and the Corporation and the Depositary will not
be obligated to appear in, prosecute, or defend any action, suit, or other
proceeding in respect of deposited shares of Preferred Stock, Depositary Shares,
or Depositary Receipts that in its opinion may subject it to expense or
liability unless satisfactory indemnity is furnished. The Depositary and the
Corporation may rely upon the written advice of counsel and the written advice
of and information provided by any accountant, any holders of Depositary
Receipts and any other persons believed by it in good faith to be competent to
give such advice or information and upon documents 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 Depositary Receipts, on the one hand, and the
Corporation, on the other hand, the Depositary shall be entitled to act on such
claims, requests, or instructions received from the Corporation.
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DESCRIPTION OF COMMON SHARES
The description of certain provisions of the Common Shares set forth below
does not purport to be complete and is subject to and qualified in its entirety
by reference to the Articles and the Regulations (i.e. by-laws) of KeyCorp which
are exhibits to the Registration Statement.
GENERAL
The Corporation's Common Shares as of December 31, 1994 consisted of
900,000,000 authorized shares, with a par value of $1 each, of which there were
240,362,117 shares outstanding (exclusive of treasury shares). The Common Shares
are traded on the New York Stock Exchange. The transfer agent and registrar for
the Common Shares is Society National Bank.
Common Shares of the Corporation may be issued from time to time, in such
amounts and proportion and for such consideration as may be fixed by the Board
of Directors of the Corporation. No holder of Common Shares has any preemptive
or preferential rights to purchase or to subscribe for any shares of capital
stock or other securities which may be issued by the Corporation. The Common
Shares have no redemption or sinking fund provisions applicable thereto. Common
Shares do not have any conversion rights. The rights of holders of Common Shares
will be subject to, and may be adversely affected by, the rights of holders of
any Preferred Stock that may be issued in the future.
The Corporation may issue authorized but unissued Common Shares in
connection with several employee benefit and stock option and incentive plans
maintained by the Corporation or its subsidiaries, and the Corporation's
Automatic Dividend Reinvestment and Cash Payment Plan.
The outstanding Common Shares are fully paid and non-assessable and future
issuances of Common Shares, when fully paid for, will be non-assessable except
that in both cases Section 1701.95 of the Ohio General Corporation Law provides
that a shareholder who knowingly receives any dividend, distribution, or payment
made contrary to law or the articles of a corporation shall be liable to the
Corporation for the amount received by him that is in excess of the amount that
could have been paid or distributed without violation of law or the articles.
DIVIDENDS
When, as, and if dividends, payable in cash, stock, or other property, are
declared by the Board of Directors of the Corporation out of funds legally
available therefor, the holders of Common Shares are entitled to share equally,
share for share, in such dividends. The payment of dividends on the Common
Shares is subject to the prior payment of dividends on the Preferred Stock and
on the 10% Cumulative Preferred Stock.
VOTING
Except as described under "Outstanding Preferred Stock" above, holders of
Common Shares have exclusive voting rights of the Corporation and are entitled
to one vote for each share on all matters voted upon by the shareholders.
Holders of Common Shares do not have the right to cumulate their voting power.
LIQUIDATION
In the event of any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Shares
are entitled to receive, on a share for share basis, any assets or funds of the
Corporation which are distributable to its holders of Common Shares upon such
events, subject to the prior rights of creditors of the Corporation and holders
of the Corporation's outstanding Preferred Stock and the 10% Cumulative
Preferred Stock.
SHAREHOLDER RIGHTS PLAN
In August 1989, the Corporation's Board of Directors declared a dividend
consisting of Rights to Purchase Common Shares ("Rights"). One of the Rights was
distributed with respect to each Common Share outstanding on September 12, 1989.
Rights have been and will continue to be issued in respect to all
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Common Shares that are issued after September 12, 1989 but before the earlier of
the expiration or redemption of the Rights or the occurrence of a Triggering
Event (as defined below), or upon the exercise of any employee stock option
granted prior to a Triggering Event. The description and terms of the Rights are
set forth in the Rights Agreement, dated as of August 25, 1989, between the
Corporation and First Chicago Trust Company of New York, as Rights Agent, as
amended by the First Amendment to Rights Agreement, dated as of February 21,
1991, between the Corporation and the First Chicago Trust Company of New York,
as Rights Agent, a Second Amendment to Rights Agreement, dated as of September
12, 1991, between the Corporation and First Chicago Trust Company of New York,
as Rights Agent, a letter of resignation of First Chicago Trust Company of New
York, dated June 26, 1992, a letter of the Corporation, dated June 26, 1992, to
Ameritrust Texas National Association (now Society National Bank), and a Third
Amendment to Rights Agreement, dated as of October 1, 1993, between the
Corporation and Society National Bank, as Rights Agent (such documents being
hereinafter collectively referred to as "Rights Agreement" which is filed as an
exhibit to the Registration Statement). The Rights are designed to protect the
interests of the Corporation and its shareholders against coercive takeover
tactics. The purpose of the Rights Agreement is to encourage potential acquirors
to negotiate with the Corporation's Board of Directors prior to attempting a
takeover and to give the Board leverage in negotiating on behalf of all
shareholders the terms of any proposed takeover. The Rights Agreement may, but
is not intended to, deter takeover proposals.
Each of the Rights initially represents the right to purchase one Common
Share for $65 (the "Purchase Price"). The Rights will become exercisable 20
calendar days after the earlier of (1) the commencement of a tender offer or
exchange offer that would result in a person or group becoming an Acquiring
Person (as defined below), or (2) a public announcement that a person or group
has become the beneficial owner of 15% or more of the outstanding Common Shares
(such person or group being an "Acquiring Person").
Until the Rights become exercisable, they will trade with the Common
Shares, and any transfer of Common Shares will also constitute a transfer of the
associated Rights. When the Rights become exercisable, they will begin to trade
separate and apart from the Common Shares. At that time, separate certificates
representing the Rights will be mailed to holders.
Twenty days after certain events occur ("Flip-in Events"), each of the
Rights will become the right to purchase one Common Share for the then par value
per share (now $1.00 per share), and the Rights beneficially owned by an
Acquiring Person will become void. The Flip-in Events are (1) the beneficial
ownership by a person or group of 15% or more of the outstanding Common Shares,
unless the Common Shares are acquired in a tender or exchange offer for all of
the Common Shares at a price and on other terms approved in advance by the
Corporation's Board of Directors, (2) certain self-dealing transactions between
the Corporation and an Acquiring Person, and (3) a reclassification or
recapitalization of the Corporation that has the effect of increasing by more
than 1% the percentage of the Common Shares owned by an Acquiring Person.
If, after a person or group becomes an Acquiring Person, the Corporation is
acquired in a merger or other business combination or 50% or more of its assets
or earning power is sold, each of the Rights will "flip-over" and become the
right to purchase common shares of the acquiror (a "Flip-over Event"). The
holder (other than the Acquiring Person) of each Right would, upon the
occurrence of a Flip-over Event, be entitled to purchase for the then par value
of a Common Share (now $1.00) the number of common shares of the acquiror having
a market price equal to the market price of a Common Share.
The Purchase Price and/or the number of Common Shares (or common shares of
an acquiror) to be purchased upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution in the event the Corporation:
(1) declares a dividend on the Common Shares payable in Common Shares, (2)
subdivides or combines the outstanding Common Shares, (3) issues any shares
other than Common Shares in a reclassification of the Common Shares or (4) makes
a distribution to all holders of Common Shares, of debt securities, subscription
rights, warrants, or other assets (except regular cash dividends). With certain
exceptions, no adjustment will be required until a cumulative adjustment of at
least 1% is required. The Corporation is not required to issue fractional shares
and, instead, may make a cash payment based on the market price of the Common
Shares.
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The Corporation's Board of Directors may redeem the Rights for 1/2
cent each (the "Redemption Price") at any time before a "Triggering Event"
(which is defined as the occurrence of a Flip-over Event or the 20th day after
a Flip-in Event). However, the Rights may not be redeemed while there exists an
Acquiring Person unless (1) Continuing Directors, as defined below, constitute
a majority of the Board of Directors and (2) a majority of the Continuing
Directors approves the redemption. "Continuing Directors" are defined as
directors who were in office prior to a person or group becoming an Acquiring
Person or whose election to office was recommended by a majority of the
Continuing Directors and who are not affiliated with the Acquiring Person. The
Rights will expire on September 12, 1999, unless they are redeemed before that
date.
Until the Rights are exercised, the holders of the Rights, as such, will
have no rights as shareholders of the Corporation, including the right to vote
or receive dividends. Upon exercise of the Rights, the holder of the Common
Share received upon the exercise thereof will be entitled to all the rights of
any other holder of Common Shares.
The provisions of the Rights Agreement may be amended by the Corporation's
Board of Directors to cure any ambiguity or correct any defect or inconsistency
or, prior to a Triggering Event, to make other changes that the Board of
Directors deems to be desirable and not adverse to the interests of the
Corporation and its shareholders.
DESCRIPTION OF CAPITAL SECURITIES
The following description of Capital Securities is included in this
Prospectus because a Prospectus Supplement may provide that Capital Securities
will be issuable upon conversion at the option of the Corporation of a series of
Subordinated Debt Securities or Preferred Stock. Whenever Capital Securities are
issued upon conversion of Subordinated Debt Securities, the Corporation will be
obligated to deliver Capital Securities with a Market Value (as defined below)
equal to the principal amount of such Subordinated Debt Securities. In addition,
the Corporation will unconditionally undertake to sell the Capital Securities in
a sale (the "Secondary Offering") on behalf of any holders who elect to receive
cash for the Capital Securities in which event the Corporation will bear all
expenses of the Secondary Offering, including underwriting discounts and
commissions. There can be no assurance, however, that there will be a market for
the Capital Securities when issued or at any time thereafter. If the Corporation
fails to deliver any Capital Securities when required to be delivered, the
Trustee may institute judicial proceedings for (i) specific performance, (ii)
money damages equal to the principal amount of the Subordinated Debt Securities
for which Capital Securities were to be converted or (iii) any other proper
remedy. If the Corporation fails to effect the Secondary Offering, it will
deliver to the holders Capital Securities and not cash, upon exchange of the
Subordinated Debt Securities. In such event, the Corporation will have no
specifically enforceable obligation to effect the Secondary Offering, but will
not be relieved of any liability for money damages it would have for breach of
its obligation to effect a Secondary Offering of sufficient amounts of Capital
Securities. The "Market Value" of any Capital Securities means their sale price
in the Secondary Offering. If the Corporation does not effect the Secondary
Offering, the Market Value of such Capital Securities shall be their fair value
when exchanged as determined by three independent nationally recognized
investment banking firms selected by the Corporation.
Whenever Preferred Stock is convertible at the option of the Corporation
into Capital Securities, the Corporation will be obligated to deliver Capital
Securities in an amount either based upon a conversion price or with a required
conversion value. The conversion value will be determined by then market prices,
by an auction or bidding procedure or by such other method as set forth in the
Applicable Prospectus Supplement.
The staff of the Commission has advised that Rules 13e-4 and 14e-1 of the
Commission's rules and regulations relating to tender offers by issuers, as
currently in effect and interpreted, would be applicable to the conversion of
Capital Securities for Subordinated Debt Securities of any series and the
Secondary Offering. If, at the time of the conversion of Capital Securities for
Subordinated Debt Securities of any series and the Secondary Offering, Rule
13e-4 or Rule 14e-1 (or any successor rule or rules) applies to such
transactions, the Corporation will comply with such rule (or any successor rule
or rules) and will afford holders of such Subordinated Securities all rights and
will make all filings required by such rule (or successor rule or rules).
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Rule 13e-4 and Rule 14e-1 may also be deemed to apply to Preferred Stock that is
convertible at the option of the Corporation.
The Capital Securities may consist of Common Shares or Preferred Stock. All
Capital Securities which will be issuable upon conversion of Subordinated Debt
Securities or Preferred Stock will, upon issuance, be duly authorized, validly
issued and, if applicable, fully paid and non-assessable.
Any shares of Preferred Stock to be so issued will have such designations,
preferences, dividend, and other rights, qualifications, limitations, and
restrictions as may be determined by the Corporation and approved by the Board
of Directors.
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue, separately or together with any Debt Securities,
Preferred Stock, Common Shares, or Depositary Shares, Securities Warrants for
the purchase of other Debt Securities, Preferred Stock, Common Shares, or
Depositary Shares (collectively, the "Underlying Securities"). The Securities
Warrants will be issued under a warrant agreement (a "Securities Warrant
Agreement") to be entered into between the Corporation and a bank or trust
company, as warrant agent (the "Securities Warrant Agent"), all as set forth in
the Applicable Prospectus Supplement relating to the particular issue of
Securities Warrants. The form of Securities Warrant Agreement, including the
form of certificates representing the Securities Warrants ("Securities Warrant
Certificates"), reflecting the alternative provisions to be included in the
Securities Warrant Agreements that will be entered into with respect to
particular offerings of Securities Warrants, is filed as an exhibit to the
Registration Statement. The following summaries of certain provisions of the
Securities Warrant Agreement and the Securities Warrant Certificates, which are
filed as exhibits to the Registration Statement, do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all of
the provisions of the Securities Warrant Agreement and the Securities Warrant
Certificates, respectively, including the definitions therein of certain terms.
Wherever defined terms of the Securities Warrant Agreement are referred to, it
is intended that such defined terms shall be incorporated herein by reference.
GENERAL
The Applicable Prospectus Supplement relating to the particular issue of
Securities Warrants offered thereby will describe the terms of the offered
Securities Warrants, the Securities Warrant Agreement relating to the offered
Securities Warrants, and the Securities Warrant Certificates representing the
offered Securities Warrants, including the following where applicable: (1) if
the Securities Warrants are offered for separate consideration, the offering
price and the currency for which Securities Warrants may be purchased; (2) the
title, aggregate principal amount, currency, and terms of the series of Debt
Securities purchasable upon exercise of the Debt Warrants and the price at which
such Debt Securities may be purchased upon such exercise; (3) the title, number
of shares, stated value, and terms (including, without limitation, liquidation,
dividend, conversion, redemption, and voting rights) of the series of Preferred
Stock purchasable upon exercise of Preferred Stock Warrants and the price at
which such number of shares of Preferred Stock of such series may be purchased
upon such exercise; (4) the number of Common Shares purchasable upon the
exercise of Common Share Warrants and the price at which such number of Common
Shares may be purchased upon such exercise; (5) the number of Depositary Shares
purchasable upon the exercise of Depositary Share Warrants, the terms of the
Preferred Stock which the Depositary Shares represent and the price at which
such number of Depositary Shares may be purchased upon such exercise; (6) the
date, if any, on and after which the offered Securities Warrants and the related
Debt Securities, Preferred Stock, Common Shares and/or Depositary Shares will be
separately transferable; (7) the time or times at which, or period or periods
during which, the offered Securities Warrants may be exercised and the final
date on which the offered Securities Warrants may be exercised (the "Expiration
Date"); (8) a discussion of the specific United States Federal income tax,
accounting, and other considerations applicable to the Securities Warrants; (9)
the location where the offered Securities Warrants represented by the Securities
Warrant Certificates may be transferred and registered; and (10) any other terms
of the offered Securities Warrants.
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Securities Warrant Certificates will be exchangeable on the terms specified
in the Applicable Prospectus Supplement for new Securities Warrant Certificates
of different denominations evidencing the same aggregate number of Warrants of
the same title, and may be transferred in whole or in part on the terms
specified in the Applicable Prospectus Supplement.
Prospective purchasers of Securities Warrants should be aware that special
U.S. federal income tax, accounting and other considerations may be applicable
to instruments such as Securities Warrants. The Applicable Prospectus Supplement
relating to any issue of Securities Warrants will describe such considerations.
EXERCISE OF WARRANTS
Each Securities Warrant will entitle the holder to purchase the principal
amount of or number of Underlying Securities provided for therein, at such
exercise price as shall in each case be set forth in, or be determinable from,
the Applicable Prospectus Supplement relating to the Securities Warrants, by
payment of such exercise price (the "Warrant Price") in full in the currency and
in the manner specified in the Applicable Prospectus Supplement. Securities
Warrants may be exercised at any time at or before 5:00 P.M., New York City time
on the Expiration Date (or such later date to which such Expiration Date may be
extended by the Corporation), and unexercised Securities Warrants will become
void at such time. Securities Warrants may be exercised at the corporate trust
office of the Securities Warrant Agent or any other office indicated in the
Applicable Prospectus Supplement relating to the Securities Warrants.
Upon receipt at the corporate trust office of the Securities Warrant Agent
or any other office indicated in the Applicable Prospectus Supplement of (i)
payment of the Warrant Price and (ii) the form of election to purchase set forth
on the reverse side of the Securities Warrant Certificate properly completed and
duly executed, the Corporation will, as soon as practicable, issue the
Underlying Securities purchasable upon such exercise. If fewer than all of the
Securities Warrants represented by such Securities Warrant Certificate are
exercised, a new Securities Warrant Certificate will be issued for the remaining
number of unexercised Securities Warrants.
MODIFICATIONS
The Warrant Agreement may be supplemented or amended by the Corporation and
the Warrant Agent from time to time, without the approval of any Holder (as
defined in the Warrant Agreement), in order to cure any ambiguity, to correct or
supplement any defective or inconsistent provision contained therein, or to make
any other provision in regard to matters or questions arising thereunder that
the Corporation and the Warrant Agent may deem necessary or desirable and which
will not adversely affect the interests of the Holders.
The Corporation and the Warrant Agent may also modify or amend the Warrant
Agreement and the Securities 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 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 the Warrant Agreement or the Warrants
may be made without the consent of each Holder affected thereby.
COMMON SHARE WARRANT ADJUSTMENTS
The terms and conditions on which the Warrant Price of and/or the number of
Common Shares covered by a Warrant to purchase Common Shares (a "Common Share
Warrant") are subject to adjustment will be set forth in the Warrant Agreement
and the Applicable Prospectus Supplement. Such terms will include provisions for
adjusting the Warrant Price and/or the number of Common Shares covered by such
Common Share Warrant; the events requiring such adjustment; the events upon
which the Corporation may, in lieu of making such adjustment, make proper
provision so that the holder of such Common Share Warrant, upon exercise
thereof, would be treated as if such holder had exercised such Common Share
Warrant prior to the
35
<PAGE> 68
occurrence of such events; and provisions affecting exercise in the event of
certain events affecting the Common Shares.
MERGER, CONSOLIDATION, SALE, OR OTHER DISPOSITIONS
If at any time there shall be a merger, consolidation, sale, conveyance,
transfer, lease, or other disposition of substantially all of the assets of the
Corporation, then the successor or assuming corporation shall succeed to and be
substituted for the Corporation in, and the Corporation will be relieved of any
further obligation under, the Warrant Agreement or the Warrants.
ENFORCEABILITY OF RIGHTS OF HOLDERS
The Warrant Agent will act solely as an agent of the Corporation in acting
under the Warrant Agreement and in connection with any Warrant Certificate. The
Warrant Agent shall have no duty or responsibility in case of any default by the
Corporation in the performance of its covenants or agreements contained in the
Warrant Agreement or in any Warrant Certificate. Each Holder may, without the
consent of the Warrant Agent, enforce by appropriate legal action, on its own
behalf, the Holder's right to exercise its Warrants in the manner provided in
the Warrant Agreement and its Warrant Certificate.
NO RIGHTS AS HOLDERS OF UNDERLYING SECURITIES
Prior to the exercise of any Securities Warrants to purchase Underlying
Securities, holders of such Securities Warrants will not have any of the rights
of holders of the Underlying Securities purchasable upon such exercise,
including, without limitation, the right to receive the payment of principal of,
or premium on, if any, or interest, if any, dividends or distributions of any
kind, if any, on Underlying Securities, the right to enforce any of the
covenants in the Indentures, if applicable, or the right to exercise any voting
rights.
PLAN OF DISTRIBUTION
The Corporation may sell Securities to one or more underwriters for public
or private offering and sale by them or may sell Securities to investors
directly or through agents (which agents may be affiliates of the Corporation)
that solicit or receive offers on behalf of the Corporation or through dealers
or through a combination of any such methods of sale.
The Applicable Prospectus Supplement will set forth the terms of the
offering of the particular series of Securities to which such Applicable
Prospectus Supplement relates, including (i) the name or names of any
underwriters or agents with whom the Corporation has entered into arrangements
with respect to the sale of such series of Securities, (ii) the initial public
offering or purchase price of such series of Securities, (iii) any underwriting
discounts, commissions, and other items constituting underwriters' compensation
from the Corporation and any other discounts, concessions, or commissions
allowed or reallowed or paid by any underwriters to other dealers, (iv) any
commissions paid to any agents, (v) the net proceeds to the Corporation and (vi)
the securities exchanges, if any, on which such series of Securities will be
listed.
Unless otherwise set forth in the Applicable Prospectus Supplement relating
to a particular series of Securities, the obligations of the underwriters to
purchase such series of Securities will be subject to certain conditions
precedent and each of the underwriters with respect to such series of Securities
will be obligated to purchase all of the Securities of such series allocated to
it if any such Securities are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
The Securities may be offered and sold by the Corporation directly or
through agents designated by the Corporation from time to time. Unless otherwise
indicated in the Applicable Prospectus Supplement, each such agent will be
acting on a reasonable efforts basis for the period of its appointment. Any
agent participating in the distribution of Securities may be deemed to be an
"underwriter," as that term is defined in the Securities Act, of the Securities
so offered and sold. The Securities also may be sold to dealers at the
applicable price to the public set forth in the Applicable Prospectus Supplement
relating to a particular series
36
<PAGE> 69
of Securities who later resell to investors. Such dealers may be deemed to be
"underwriters" within the meaning of the Securities Act.
Underwriters, dealers, and agents may be entitled, under agreements entered
into with the Corporation, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act.
The Corporation may also issue contracts under which the counterparty may
be required to purchase Debt Securities, Preferred Stock, or Depositary Shares.
Such contracts would be issued with Debt Securities, Preferred Stock, or
Depositary Shares and/or Securities Warrants in amounts, at prices and on terms
to be set forth in a Prospectus Supplement.
If so indicated in the Applicable Prospectus Supplement, the Corporation
will authorize underwriters, dealers, or agents to solicit offers by certain
institutions to purchase Securities of a series from the Corporation at the
public offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts (each a "Contract") providing for payment and delivery at a
future date. Each Contract will be subject only to those conditions set forth in
the Applicable Prospectus Supplement and the Applicable Prospectus Supplement
will set forth the commission payable for solicitation of such offers.
Any of the underwriters, dealers, and agents of the Corporation and their
associates may be customers of, engage in transactions with, and perform
services for the Corporation in the ordinary course of business.
The place and time of delivery of the Securities will be set forth in the
Applicable Prospectus Supplement.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Corporation, as shall be indicated in the Applicable Prospectus Supplement, by
either the General Counsel or a Senior Managing Counsel to the Corporation or by
Thompson, Hine and Flory, 1100 National City Bank Building, Cleveland, Ohio
44114, and for the Underwriters by Shearman & Sterling, 599 Lexington Avenue,
New York, New York 10022. Shearman & Sterling will rely as to all matters of
Ohio law on the opinion rendered on behalf of the Corporation. The General
Counsel or a Senior Managing Counsel to the Corporation or Thompson, Hine and
Flory, as the case may be, will rely as to all matters of New York law on the
opinion of Shearman & Sterling. The aggregate number of shares owned by
attorneys at Thompson, Hine and Flory or the General Counsel or Senior Managing
Counsel of the Corporation rendering the opinion referred to above on behalf of
the Corporation will be set forth in the Applicable Prospectus Supplement.
EXPERTS
The consolidated financial statements of KeyCorp and subsidiaries
incorporated by reference in KeyCorp's Annual Report (Form 10-K) for the year
ended December 31, 1994, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon incorporated therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
37
<PAGE> 70
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS SUPPLEMENT, THE
ACCOMPANYING PROSPECTUS OR ANY PRICING SUPPLEMENT IN CONNECTION WITH THE OFFER
CONTAINED HEREIN AND, IF GIVEN OR MADE, ANY SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY AGENT,
DEALER OR UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT, THE
ACCOMPANYING PROSPECTUS OR ANY PRICING SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN OR IN THE ACCOMPANYING PROSPECTUS OR ANY PRICING
SUPPLEMENT IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF OR THEREOF OR
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF. NEITHER THIS PROSPECTUS SUPPLEMENT NOR THE ACCOMPANYING
PROSPECTUS NOR ANY PRICING SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
PROSPECTUS SUPPLEMENT
Selected Consolidated Financial
Data............................... S-2
Description of Notes................. S-4
Foreign Currency Risks............... S-20
United States Tax Considerations..... S-21
Plan of Distribution................. S-28
Validity of the Notes................ S-29
PROSPECTUS
Available Information................ 2
Incorporation of Certain Documents by
Reference.......................... 2
The Corporation...................... 4
Consolidated Ratio of Earnings to
Fixed Charges and Ratio of Earnings
to Combined Fixed Charges and
Preferred Stock Dividends.......... 7
Use of Proceeds...................... 7
Description of Debt Securities....... 8
Description of Preferred Stock....... 22
Description of Depositary Shares..... 26
Description of Common Shares......... 31
Description of Capital Securities.... 33
Description of Securities Warrants... 34
Plan of Distribution................. 36
Legal Opinions....................... 37
Experts.............................. 37
</TABLE>
$750,000,000
[KEYCORP LOGO]
SENIOR MEDIUM-TERM NOTES,
SERIES C
SUBORDINATED MEDIUM-TERM
NOTES, SERIES B
DUE NINE MONTHS
OR MORE FROM DATE
OF ISSUE
SALOMON BROTHERS INC
CS FIRST BOSTON
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
DATED APRIL , 1995
<PAGE> 71
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.............................................. $291,378
Fees of Rating Agencies........................................... 180,000
Printing and Engraving Expenses................................... 25,000
Legal Fees and Expenses........................................... 75,000
Accounting Fees and Expenses...................................... 20,000
Fees of Indenture Trustees........................................ 8,000
Blue Sky Fees and Expenses........................................ 25,000
Miscellaneous..................................................... 50,000
--------
Total................................................... $674,378
========
</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.
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.
II-1
<PAGE> 72
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 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.
II-2
<PAGE> 73
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> 74
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 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 31ST DAY OF
MARCH, 1995.
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 FORM S-3
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED.
Victor J. Riley, Jr., Chairman of the Board, Chief Executive Officer, and
Director (Principal Executive Officer); Robert W. Gillespie, President, Chief
Operating Officer and Director (Principal Operating Officer); James W. Wert,
Senior Executive Vice President and 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; Kenneth M. Curtis, Director; John C. Dimmer, 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.
KEYCORP
By /s/ CARTER B. CHASE
-----------------------------
Carter B. Chase
Attorney-in-Fact
March 31, 1995
II-4
<PAGE> 75
KEYCORP
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
FORM S-3
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
(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) Senior Indenture between KeyCorp and Bankers Trust Company, as Trustee.
(4)(d) 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) First Amendment 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) Second Amendment 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) Third Amendment 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 Steven N. Bulloch, Senior Managing Counsel to the Corporation 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. Incorporated herein by
reference to Exhibit 12 to KeyCorp's Annual Report on Form 10-K for the year ended
December 31, 1994 filed on March 28, 1995.
(23)(a) Consent of Ernst & Young LLP
(23)(b) Consent of Steven N. Bulloch, Senior Managing Counsel to the Corporation (included
as part of Exhibit (5)).
(23)(c) Consent of Thompson, Hine and Flory.
(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>
<PAGE> 1
Exhibit 1(a)
KeyCorp
(an Ohio corporation)
Senior Debt
Securities, Subordinated
Debt Securities, Preferred Stock,
Depositary Shares representing Preferred
Stock, Warrants to Purchase Debt Securities,
Preferred Stock, Depositary Shares, Common Stock or Capital Securities
UNDERWRITING AGREEMENT STANDARD PROVISIONS
------------------------------------------
From time to time, KeyCorp, an Ohio corporation (the "Company"), may
enter into one or more Terms Agreements in the form of Exhibit A hereto (each a
"Terms Agreement") that provide for the sale of designated securities to the
several underwriters named therein. The standard provisions set forth herein
may be incorporated by reference in any such Terms Agreement. The Terms
Agreement including the provisions incorporated therein by reference, is herein
referred to as "this Agreement". Unless otherwise defined herein, terms defined
in the Terms Agreement are used herein as therein defined.
1. Description of Securities. The Company proposes to issue and sell
-------------------------
from time to time, either together or separately, certain of its (i) senior debt
securities (the "Senior Debt Securities") and/or (ii) subordinated debt
securities (the "Subordinated Debt Securities", and together with the Senior
Debt Securities, the "Debt Securities"), and/or (iii) preferred stock (the
"Preferred Stock"), and/or (iv) depositary shares which represent fractional
interests in the Preferred Stock (the "Depositary Shares") and/or (v) warrants
(the "Warrants") to purchase Debt Securities, Preferred Stock, Depositary
Shares, or the Company's Common Shares, with a par value of $1 each (the "Common
Stock"), in one or more offerings on terms determined at the time of sale and
set forth in a Terms Agreement. The Subordinated Debt Securities may be
convertible into Capital Securities (as defined below) of the Company and the
Preferred Stock may be convertible into shares of Common Stock, Debt Securities
or any class or series of Capital Securities in each case as set forth in the
applicable Terms Agreement relating thereto. As used herein, "Capital
Securities" means any securities issued by the Company which consist of (i)
Common Stock, (ii) perpetual preferred stock or (iii) other capital securities
of the Company permitted by the Company's
<PAGE> 2
2
primary federal banking regulator. Capital Securities may have such terms,
rights and preferences as may be determined by the Company.
The Senior Debt Securities are to be issued under an Indenture dated
as of June 10, 1994, as amended or supplemented (the "Senior Indenture"),
between the Company and Bankers Trust Company, as trustee (the "Senior
Trustee"). The Subordinated Debt Securities are to be issued under an Indenture
dated as of June 10, 1994, as amended or supplemented (the "Subordinated
Indenture"), between the Company and Bankers Trust Company, as trustee (the
"Subordinated Trustee", and together with the Senior Trustee, the "Trustees").
The Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures". The Senior Debt Securities and the Subordinated
Debt Securities may have varying titles, maturities, rates and times of payment
of interest, if any, selling prices, redemption terms, if any, conversion terms,
if any, and other specific terms as set forth in the applicable Terms Agreement
relating thereto.
The Warrants are to be issued under warrant agreements (each a
"Warrant Agreement"), between the Company and a bank or trust company, as
warrant agent (the "Warrant Agent"). The Warrants may have varying titles,
expiration dates, selling prices, redemption terms, if any, adjustment terms, if
any, and other specific terms as set forth in the applicable Terms Agreement
relating thereto.
Each issue of Preferred Stock may vary as to the specific number of
shares, title, stated value and liquidation preference, issuance price, dividend
rate or rates (or method of calculation), dividend payment dates, redemption or
sinking fund requirements, conversion provisions and any other variable terms as
set forth in the applicable Terms Agreement relating to such Preferred Stock.
If the shares of Preferred Stock are to be offered in the form of Depositary
Shares, the Preferred Stock will, when issued, be deposited by the Company
against delivery of depositary receipts (the "Depositary Receipts") to be issued
under a deposit agreement (the "Deposit Agreement"), to be entered into among
the Company, a depositary institution (the "Depositary") and the holders from
time to time of the Depositary Receipts issued thereunder. The Depositary
Receipts will evidence the Depositary Shares and each Depositary Share will
represent a fraction of a share of Preferred Stock. The Preferred Stock,
together, if applicable, with the Depositary Shares is hereinafter referred to
as the "Shares".
The Debt Securities, Warrants and Shares to be issued and sold as
specified in the applicable Terms Agreement, shall collectively be referred to
herein as the "Offered Securities". The Company may also grant to the
Underwriters an option to purchase additional Offered Securities to cover over-
allotments, if any, as specified in the applicable Terms Agreement (the "Option
Securities"). The Offered Securities and Option Securities, if any, shall
collectively be referred to as the "Securities". As used herein, unless the
context otherwise requires, the term "Underwriters" shall mean the firm or firms
specified as Underwriter or Underwriters in the applicable Terms Agreement
relating to the Securities and the term "you" shall mean the Underwriter or
Underwriters, if no underwriting syndicate
<PAGE> 3
3
is purchasing the Securities, or the representative or representatives of the
Underwriters specified in the applicable Terms Agreement (the
"Representatives"), if an underwriting syndicate is purchasing the Securities,
as specified in the applicable Terms Agreement.
The Debt Securities, Preferred Stock, Depositary Shares and Warrants
may be sold either separately or as units (the "Units").
Whenever the Company determines to make an offering of Securities, the
Company will enter into a Terms Agreement providing for the sale of the
applicable Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to the Securities shall specify the
type of Securities to be issued, the names of the Underwriters participating in
such offering (subject to substitution as provided in Section 9 hereof), the
number of Offered Securities which each such Underwriter severally agrees to
purchase, the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price of the
Securities, the time and place of delivery and payment and other specific terms.
The Terms Agreement may take the form of an exchange of any standard form of
written telecommunication between you and the Company. Each offering of
Securities will be governed by this Agreement and shall inure to the benefit of
and be binding upon the Company and each Underwriter participating in the
offering of such Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File
No.____), including a prospectus, relating to the Securities and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act" and the rules and regulations thereto
being referred to as the "Securities Act Regulations"), which registration
statement also constitutes post-effective amendment no. 1 to registration
statement no. 33-53643 relating to the Company's debt securities, debt
warrants, preferred stock, depositary shares, preferred stock warrants,
depositary share warrants, common shares, common share warrants and capital
securities. Such registration statement and such post-effective amendments, as
amended, have been declared effective by the Commission. As provided in
Section 4(a), a prospectus supplement reflecting the terms of the Securities,
the terms of the offering thereof and the other matters set forth therein has
been prepared and will be filed pursuant to Rule 424 under the Securities Act.
Such prospectus supplement, in the form first filed after the date of the
applicable Terms Agreement pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement". Such registration statement and such post-effective
amendments, as amended at the date of the applicable Terms Agreement, including
the exhibits thereto and the documents incorporated by reference therein, are
herein called the "Registration Statement", and the basic prospectus included
therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus", except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement,
in either case
<PAGE> 4
4
including the documents filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference therein. Any preliminary prospectus supplement
included in such Registration Statement or filed with the Commission pursuant
to Rule 424(a) of the Securities Act Regulations is herein called a
"Preliminary Prospectus".
2. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to, and agrees with, each Representative and each
Underwriter that:
(a) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission.
(b) The Company meets the requirements for use of Form S-3 under the
Securities Act and the Registration Statement and the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder; each part of the Registration Statement and
any amendment or supplement thereto, as of the date such part became or
becomes effective, did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; each
Prospectus, and any amendment or supplement thereto, as of the date
thereof, did not or will not include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading
provided, however, that the Company makes no representations or warranties
as to (i) that part of the Registration Statement which shall constitute
the Statement of Eligibility (Form T-1) under the Trust Indenture Act of
the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation of the Registration Statement and such Prospectus.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, comply, or will comply, as the case may be, in all material respects to
the requirements of the Exchange Act and, if applicable, the Securities Act
and none of such documents contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the
<PAGE> 5
5
Prospectus, or any amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Exchange
Act and, as applicable, the Securities Act and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(d) (i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Ohio, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, and is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as
amended, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure
to be so qualified or in good standing, considering all such cases in the
aggregate, does not involve a material risk to the business, properties,
financial position or results of operations of the Company and its
subsidiaries; (ii) each of its national bank subsidiaries is a duly
organized and validly existing national banking association under the laws
of the United States, continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as such;
each of its state-chartered bank subsidiaries is a duly organized and
validly existing state-chartered bank under the laws of the jurisdiction of
its organization, continues to hold a valid certificate to do business as
such and has full power and authority to conduct its business as such; each
of its federal savings association subsidiaries is a duly organized and
validly existing federal savings association under the laws of the United
States, continues to hold a valid certificate to do business as such and
has full power and authority to conduct its business as such; each of its
other significant subsidiaries, as defined in Regulation S-X (the
"Significant Subsidiaries") is duly organized and validly existing under
the laws of the jurisdiction of its organization with corporate power and
authority under such laws to conduct its business; and (iii) all of the
outstanding shares of capital stock of each such subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable (except,
with respect to any subsidiary that is a national bank, as provided by
Section 55 of Title 12 of the United States Code; and, with respect to any
subsidiary that is a bank incorporated under state law, except as provided
by the laws of any such states and (except as otherwise stated in the
Registration Statement) are owned beneficially by the Company subject to no
security interest, pledge, lien, charge or other encumbrance or adverse
claim.
(e) The execution and delivery of this Agreement, the Indentures, the
Warrant Agreement, and the Deposit Agreement, if any, and the consummation
of the transactions contemplated herein and therein, have been duly
authorized by all necessary corporate action and when executed by the
Company and the other parties thereto will not result in any breach of any
of the terms, conditions or provisions of,
<PAGE> 6
6
or constitute a default under, or result in the creation or imposition of
any security interest, lien, charge or encumbrance upon any property or
assets of the Company or its subsidiaries, pursuant to any indenture,
loan agreement, contract or other material agreement or instrument to
which the Company or its subsidiaries is a party or by which the Company
may be bound or to which any of the property or assets of the Company or
its subsidiaries is subject, nor will such action result in any violation
of the provisions of the Amended and Restated Articles of Incorporation
or the Regulations of the Company or its subsidiaries or any applicable
statute, rule or regulation or, to the best of its knowledge, any order
of any court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties.
(f) If the Securities include Debt Securities, such Debt Securities
shall, on the date of the Terms Agreement relating to such Securities, be
duly authorized and, when such Debt Securities are duly executed,
authenticated and delivered in the manner provided for in the applicable
Indenture and issued and paid for in accordance with this Agreement and the
applicable Terms Agreement, such Debt Securities will constitute legal,
valid and binding obligations of the Company entitled to the benefits of
the applicable Indenture and enforceable against the Company in accordance
with their terms subject, as to enforcement, to bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and to general equity principles; and, if the
Securities include Subordinated Debt Securities that are convertible into
Capital Securities, then such Subordinated Debt Securities shall be
convertible into Capital Securities in accordance with their terms and the
terms of the Subordinated Indenture.
(g) If the Securities include Preferred Stock, such shares of
Preferred Stock shall, on the date of the Terms Agreement relating to such
Securities, be duly authorized and, when such shares of Preferred Stock are
duly executed and delivered and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such shares of Preferred
Stock will have been validly issued, fully paid and non-assessable; no
holder thereof will be subject to personal liability by reason of being
such a holder; such shares of Preferred Stock will not be subject to the
preemptive rights of any stockholder of the Company; and all corporate
action required to be taken for the authorization, issue and sale of such
shares of Preferred Stock has been, or at the Closing Date will be, validly
and sufficiently taken; and, if the Securities include shares of Preferred
Stock that are to be represented by Depositary Shares, then, upon deposit
by the Company of such shares of Preferred Stock with the Depositary
pursuant to the Deposit Agreement and the execution by the Depositary of
the Depositary Receipts evidencing the Depositary Shares, such Depositary
Shares shall represent legal and valid interests in such shares of
Preferred Stock; and, if the Securities include shares of Preferred Stock
that are convertible into Capital Securities, Debt Securities or other
preferred stock, then such shares of
<PAGE> 7
7
Preferred Stock shall be convertible into Capital Securities, Debt
Securities or other preferred stock in accordance with their terms and
the terms of the Certificate of Amendment establishing a series of a
class of stock relating to such shares of Preferred Stock (the
"Certificate of Amendment").
(h) If the Securities include Warrants, such Warrants shall, on the
date of the Terms Agreement relating to such Securities, be duly authorized
and, when such Warrants are duly executed, countersigned and delivered in
the manner provided for in the Warrant Agreement and issued and paid for in
accordance with this Agreement and the applicable Terms Agreement, such
Warrants will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Warrant Agreement and enforceable
against the Company in accordance with their terms subject, as to
enforcement, to bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally and to
general equity principles; and the Warrants shall be exercisable for Debt
Securities or Preferred Stock in accordance with their terms and the terms
of the Warrant Agreement.
(i) If the Securities include Preferred Stock convertible into Debt
Securities or Debt Securities, the Indentures have been duly authorized by
the Company and qualified under the Trust Indenture Act, will be
substantially in the forms filed as exhibits to the Registration Statement
and, when duly executed and delivered by the Company and the Trustees, will
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms subject, as to
enforcement, to bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally and to
general equity principles; and the summary descriptions of the Indentures
set forth in the Prospectus conform in all material respects to the
provisions contained in the Indentures.
(j) If the Securities include Preferred Stock convertible into
Capital Securities or other preferred stock and/or Subordinated Debt
Securities convertible into Capital Securities, the Capital Securities or
preferred stock issuable upon conversion of the shares of Preferred Stock
pursuant to their terms and the terms of the Certificate of Amendment
and/or the Capital Securities issuable upon conversion of the Subordinated
Debt Securities pursuant to their terms and the terms of the Subordinated
Indenture, on the date of the Terms Agreement relating to such Securities,
shall be duly authorized and validly reserved for issuance upon such
conversion by all necessary corporate action and such Capital Securities or
other preferred stock, when issued upon such conversion will be validly
issued, fully paid and non-assessable; no holder thereof will be subject to
personal liability by reason of being such a holder; and the issuance of
such Capital Securities or other preferred stock upon such conversion will
not be subject to preemptive rights.
<PAGE> 8
8
(k) If the Securities include Depositary Shares, the Deposit Agreement
has been duly authorized by the Company, will be substantially in the form
filed as an exhibit to the Registration Statement and, when duly executed
and delivered by the Company and the Depositary, will constitute a legal,
valid and binding obligation of the Company enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally and to general equity principles; and the
summary description of the Deposit Agreement set forth in the Prospectus
conforms in all material respects to the provisions contained in the
Deposit Agreement.
(l) If the Securities include Warrants, the Warrant Agreement has
been duly authorized by the Company, will be substantially in the form
filed as an exhibit to the Registration Statement and, when duly executed
and delivered by the Company and the Warrant Agent, will constitute a
legal, valid and binding obligation of the Company enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency (including, without limitation, laws relating to fraudulent
transfer), reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally and to general equity principles; and
the summary description of the Warrant Agreement conforms in all material
respects to the provisions contained in the Warrant Agreement.
(m) If applicable, the shares of a Company's Common Stock, issuable
upon conversion or exercise of any issue of Offered Securities have been
duly authorized and reserved for issuance upon such conversion by all
necessary corporate action and, when issued and delivered in accordance
with the provisions of this Agreement relating thereto, will be validly
issued, fully paid and non-assessable, no holder thereof will be subject to
personal liability by reason of being such a holder; and the issuance of
such shares upon such conversion will not be subject to preemptive rights.
(n) The Securities conform in all material respects to the summary
descriptions thereof contained or incorporated by reference in the
Prospectus and such summary descriptions conform to the rights set forth in
the instruments defining the same.
(o) To the knowledge of the Company and except as set forth in the
Prospectus, there is no threatened action, suit or proceeding that could
reasonably be expected to result in any material adverse change in the
condition (financial or other), business or results of operations of the
Company and its subsidiaries, or could reasonably be expected to materially
and adversely affect the properties or assets thereof.
<PAGE> 9
9
(p) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Securities or the Capital Securities.
(q) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or other), business or
results of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus.
(r) The Company has complied and will comply with all applicable
provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida
statutes, and all regulations promulgated thereunder relating to issuers
doing business in Cuba.
(s) The aggregate amount of Securities to be purchased pursuant to
this Agreement does not exceed the amount remaining registered under the
Registration Statement.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with an
offering of Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter participating in
such offering.
3. Purchase, Sale and Delivery of Securities. On the basis of the
-----------------------------------------
representations, warranties and agreements herein contained and contained in the
applicable Terms Agreement, but subject to the terms and conditions herein and
therein set forth, the Company agrees to issue and sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
pursuant to the terms of a Terms Agreement.
If so authorized in the Terms Agreement, the Underwriters may solicit
offers from investors of the types set forth in the Prospectus to purchase
Securities from the Company pursuant to delayed delivery contracts ("Delayed
Delivery Contracts"). Such contracts shall be substantially in the form of
Exhibit I hereto but with such changes therein as the Company may approve. As
compensation for arranging Delayed Delivery Contracts, the Company will pay to
the Representatives on the Closing Date, for the accounts of the Underwriters, a
fee as follows: (i) in the case of Debt Securities, Debt Warrants and Units
consisting of Debt Securities and Debt Warrants, an amount equal to the
percentage set forth in the applicable Terms Agreement of the principal amount
of the Debt Securities or number of Debt Warrants for which such Delayed
Delivery Contracts are made, (ii) in the case of Preferred Stock, Depositary
Shares and Units consisting of Preferred Stock and any other Securities, an
amount equal to the percentage set forth in the applicable Terms Agreement of
the aggregate liquidation preference of the Preferred Stock, including shares
represented by such Depositary Shares, for which Delayed Delivery Contracts are
made, (iii) in the case of
<PAGE> 10
10
all other Securities, an amount as set forth in the applicable Terms Agreement
of Securities for which such Delayed Delivery Contracts are made. Securities to
be purchased pursuant to Delayed Delivery Contracts are herein called "Contract
Securities". When Delayed Delivery Contracts are authorized in the applicable
Terms Agreement, the Company will enter into a Delayed Delivery Contract in each
case where a sale of Contract Securities arranged through you has been approved
by the Company but, except as the Company may otherwise agree, such Delayed
Delivery Contracts must be for at least the minimum amount of Contract
Securities set forth in the applicable Terms Agreement hereto, and the aggregate
amount of Contract Securities may not exceed the amount set forth in such
Schedule. The Company will advise you not later than 10:00 A.M., New York City
time, on the third full business day preceding the Closing Date (or at such
later time as you may otherwise agree) of the sales of Contract Securities that
have been so approved. You and the other Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts.
The Representatives shall submit to the Company, at least three
business days prior to Closing Date, the names of any institutional investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the amount or number of Securities to be purchased by each of
them, and the Company will advise the Representatives, at least two business
days prior to Closing Date, of the names of the institutions with which the
making of Delayed Delivery Contracts is approved by the Company and the amount
or number of Securities to be covered by each such Delayed Delivery Contract.
The amount of Securities to be purchased by each Underwriter as set
forth in the applicable Terms Agreement shall be reduced by an amount which
shall bear the same proportion to the total amount of Contract Securities as the
amount of Securities set forth opposite the name of such Underwriter bears to
the total amount of Securities set forth in the applicable Terms Agreement,
except to the extent that you determine that such reduction shall be otherwise
than in such proportion and so advise the Company; provided, however, that the
total amount of Securities to be purchased by all Underwriters shall be the
total amount of Securities set forth in the applicable Terms Agreement less the
aggregate amount of Contract Securities.
The Offered Securities to be purchased by the Underwriters will be
delivered by the Company to you for the accounts of the several Underwriters at
the office specified in the applicable Terms Agreement against payment of the
purchase price therefor by certified or official bank check or checks in New
York Clearing House (next day) funds payable to the order of the Company at the
office, on the date and at the times specified in such Terms Agreement, or at
such other time not later than eight full business days thereafter as you and
the Company determine, such time being herein referred to as the "Offered
Securities Closing Date". The Option Securities to be purchased by the
Underwriters will be delivered by the Company to you for the accounts of the
several Underwriters at the office specified in the applicable Terms Agreement
against payment of the purchase price therefor by certified
<PAGE> 11
11
or official bank check or checks in New York Clearing House (next day) funds
payable to the order of the Company at the office, on the date and at the times
specified in such Terms Agreement, or at such other time not later than eight
full business days thereafter as you and the Company determine, such time being
herein referred to as the "Option Closing Date". The Offered Securities Closing
Date and the Option Securities Closing Date are hereinafter collectively
referred to as the "Closing Date". Such Securities will be prepared in
definitive form and in such authorized denominations and registered in such
names as you may require upon at least two business days' prior notice to the
Company and will be made available for checking and packaging at the office at
which they are to be delivered on the applicable Closing Date (or such other
office as may be specified for that purpose in the Terms Agreement) at least one
business day prior to the applicable Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to the
Company on behalf of any other Underwriter for Securities to be purchased by
such Underwriter. Any such payment by you shall not relieve any such Underwriter
of any of its obligations hereunder.
The Company will pay to you on the applicable Closing Date for the
account of each Underwriter any commission or other compensation that is
specified in the Terms Agreement. Such payment will be made by certified or
official bank check in New York Clearing House (next day) funds.
4. Covenants. The Company covenants and agrees with each
---------
Representative and each Underwriter that:
(a) (i) If reasonably requested by you in connection with the
offering of the Offered Securities, the Company will prepare a Preliminary
Prospectus containing such information concerning the Securities as you and
the Company deem appropriate and (ii) immediately following the execution
of each Terms Agreement, the Company will prepare a Prospectus Supplement
that complies with the Securities Act and the Securities Act Regulations
and that sets forth the number or principal amount of Securities covered
thereby, the names of the Underwriters participating in the offering and
the number or principal amount of Securities which each severally has
agreed to purchase, the name of each Underwriter, if any, acting as
representative in connection with the offering, the price at which the
Securities are to be purchased by the Underwriters from the Company, the
initial public offering price, the selling concession and reallowance, if
any, and such other information concerning the Securities as you and the
Company deem appropriate in connection with the offering of the Securities.
The Company will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424 under the Securities Act and
will furnish to the Underwriters named therein as many copies of any
Preliminary Prospectus, the Prospectus and the Prospectus Supplement as you
shall reasonably request.
<PAGE> 12
12
(b) If at any time when the Prospectus is required by the Securities
Act to be delivered in connection with sales of the Offered Securities any
event shall occur or condition exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or counsel for the Company,
to amend the Registration Statement or amend or supplement the Prospectus
in order that the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
under which they were made, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend the Registration Statement
or amend or supplement the Prospectus in order to comply with the
requirements of the Securities Act or the Securities Act Regulations, the
Company will promptly prepare and file with the Commission, subject to
Section 4(d), such amendment or supplement as may be necessary to correct
such untrue statement or omission or to make the Registration Statement or
the Prospectus comply with such requirements. Neither the Representatives'
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of the conditions set forth in Section
5.
(c) During the period when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the Offered
Securities, the Company will, subject to Section 4(d), file promptly all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(d) During the period between the date of the applicable Terms
Agreement and the Closing Date, the Company will inform you of its
intention to file any amendment to the Registration Statement, any
supplement to the Prospectus or any document that would as a result thereof
be incorporated by reference in the Prospectus, will furnish you with
copies of any such amendment, supplement or other document and will not
file any such amendment, supplement or other document in a form to which
you or your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the Offered
Securities, the Company will notify you immediately, and confirm the notice
in writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Prospectus or any document that would as a result
thereof be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement, (iv)
of any request by the Commission for any amendment to the Registration
Statement or any supplement to the Prospectus or for additional information
relating thereto or to any document incorporated by reference in the
Prospectus and (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Offered Securities for offering or
sale in any jurisdiction, or of the institution or threatening of any
proceeding for
<PAGE> 13
13
any of such purposes. The Company will use every reasonable effort to
prevent the issuance of any such stop order or of any order suspending such
qualification and, if any such order is issued, the Company will use every
reasonable effort to obtain the lifting thereof at the earliest possible
moment.
(f) The Company has furnished or will furnish to you as many copies
of the Registration Statement as originally filed and of all amendments
thereto, whether filed before or after the Registration Statement becomes
effective, copies of all exhibits and documents filed therewith (including
documents incorporated by reference into the Prospectus pursuant to Item 12
of Form S-3 under the Securities Act) and copies of all consents and
certificates of experts as you may reasonably request, and has furnished or
will furnish to you, for each other Underwriter, one copy of the
Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference into the Prospectus but
without exhibits).
(g) The Company will use its reasonable best efforts to qualify the
Offered Securities and, if applicable, any Debt Securities, Preferred Stock
or Common Stock which may be issuable pursuant to the exercise of the
applicable Warrants and Capital Securities into or for which the
Subordinated Debt Securities are convertible and the Capital Securities,
other preferred stock or Debt Securities into which the shares of Preferred
Stock are convertible for offering and sale under the applicable securities
laws of such states and other jurisdictions as you may reasonably designate
and to maintain such qualifications in effect for a period of not less than
one year from the effective date of the Terms Agreement applicable to such
Offered Securities; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Offered Securities
have been qualified as above provided.
(h) With respect to each sale of Offered Securities, the Company will
make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby,
an earnings statement of the Company (in form complying with the provisions
of Rule 158 of the Securities Act Regulations) covering a period of 12
months beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the effective date (as defined in
Rule 158) of the Registration Statement relating to the Offered Securities.
(i) If and to the extent specified in the applicable Terms Agreement,
the Company will use its best efforts to effect the listing of the Offered
Securities and, if applicable, any Debt Securities, Preferred Stock or
Common Stock which may be
<PAGE> 14
14
issuable pursuant to the exercise of the applicable Warrants and the
Capital Securities, other preferred stock or Debt Securities issuable upon
conversion of Preferred Stock and/or Capital Securities issuable upon
conversion of Subordinated Debt Securities, on the New York Stock Exchange
or such other national securities exchange as may be designated in the
applicable Terms Agreement by the Closing Date with respect to the
applicable Terms Agreement.
(j) For a period of five years after the Closing Date, the Company
will furnish to you copies of all annual reports, quarterly reports and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the Commission, and such
other documents, reports and information as shall be furnished by the
Company to its stockholders generally.
(k) Between the date of the applicable Terms Agreement and the
Closing Date or such other date as is set forth in such Terms Agreement,
the Company will not, without your prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, the securities set forth in such Terms Agreement,
other than as set forth in such Terms Agreement.
(l) The Company, whether or not the transactions contemplated
hereunder are consummated or the Agreement is terminated, will pay all
expenses incident to the performance of its obligations hereunder, will pay
the expenses of printing or otherwise producing all documents relating to
the offering, and will pay, or reimburse the Underwriters, for any
reasonable expenses (including fees and disbursements of counsel) incurred
by them in connection with the matters referred to in Section 4(g) hereof
and the preparation of memoranda relating thereto, for any filing fee of
the National Association of Securities Dealers, Inc. relating to the
Securities, for any fees charged by investment rating agencies for rating
the Securities, for any fees and expenses of any Trustee and any agent of
any Trustee in connection with any Indenture and the Securities, for any
listing fees and for the cost of mailing any Preliminary Prospectus.
Notwithstanding the foregoing, if there is a mistake in the written
information furnished by the Representative or Representatives to the
Company for use in the Prospectus and if such Prospectus is required to be
reprinted pursuant to Sections 4(b) and 4(d), then the expense of
reprinting such Prospectus shall be borne, severally, by the Underwriter or
Underwriters who shall have furnished such incorrect information to such
Representative or Representatives.
(m) The Company will apply the net proceeds from the sale of the
Securities as set forth in the Prospectus.
5. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters to purchase and pay for the Offered Securities as provided
herein shall be subject to the accuracy, as of the date hereof and the date of
any such Terms Agreement and the Closing Date (as if made at the Closing Date),
of the representations and warranties of
<PAGE> 15
15
the Company herein, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance by the Company of all of its covenants and other obligations
hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in
accordance with the Securities Act Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission.
(b) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change or any development in or affecting
particularly the business or properties of the Company or its subsidiaries
which, in the judgment of a majority in interest of the Underwriters,
materially impairs the investment quality of the Securities (ii) trading in
any securities of the Company has been suspended by the Commission or a
national securities exchange or if trading on the New York Stock Exchange
or the American Stock Exchange shall have been suspended, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, on the New York Stock
Exchange or the American Stock Exchange, by such Exchange or by order of
the Commission or any other governmental authority having jurisdiction,
(iii) any banking moratorium declared by Federal or New York authorities,
(iv) any downgrading in the rating accorded the Company's debt securities
or Preferred Stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act or any public announcement that any
such organization has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
Preferred Stock, or (v) any outbreak or escalation of hostilities in which
the United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or
occurrence of a similar character if, in the judgment of a majority in
interest of the Underwriters, including any Representatives, the effect of
any such outbreak, escalation, declaration, calamity or other event or
occurrence makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities. Promptly after
the determination by such majority in interest of the Underwriters that it
is impractical or inadvisable to proceed with the completion of the sale
and payment for the Securities, the Representatives shall notify the
Company of such determination in writing; but the omission so to notify the
Company shall not act to modify the rights of the Underwriters under this
Section 5(b).
(c) On the applicable Closing Date, you shall have received the
opinion of the General Counsel or any Senior Managing Counsel to the
Company and/or Thompson, Hine and Flory, counsel to the Company, as
indicated in the applicable
<PAGE> 16
16
Prospectus Supplement (it being understood that any opinion with respect to
Key Bank of New York, Key Bank of Washington, Key Bank of Oregon, Key Bank
of Maine, Key Bank of Idaho, Key Bank of Utah, Society Bank, Michigan,
Key Bank of Alaska or Key Bank of Colorado may be delivered by the
General Counsel or any Senior Managing Counsel to the Company), dated the
Closing Date, together with signed or reproduced copies of such opinion for
each of the other Underwriters, in form and substance satisfactory to you
or your counsel, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of Ohio and is duly
registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended; each of Society National Bank and Society
National Bank, Indiana (the "National Banks") is a duly organized and
validly existing national banking association under the laws of the
United States and continues to hold a valid certificate to do business
as such; each of Key Bank of New York, Key Bank of Washington, Key
Bank of Oregon, Key Bank of Maine, Key Bank of Idaho, Key Bank of
Utah, Society Bank, Michigan, Key Bank of Alaska or Key Bank of
Colorado (the "State Banks") is a duly organized and validly
existing state chartered banking association under the laws of the
States of New York, Washington, Oregon, Maine, Idaho, Utah,
Michigan, Alaska and Colorado, respectively, and each continues to
hold a valid certificate to do business as such; each of the Company,
the National Banks and the State Banks has full corporate power and
authority to conduct its business as described in the Registration
Statement and Prospectus and is duly qualified to do business in each
jurisdiction in which it owns or leases real property, except where
the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the Company
and its subsidiaries taken as a whole; and all of the outstanding
shares of capital stock of each of the National Banks and the State
Banks have been duly authorized and validly issued, are fully paid and
non-assessable (exceptions to be specified) and (except as otherwise
stated in the Registration Statement) are owned beneficially by the
Company subject to no security interest, other encumbrance or adverse
claim.
(ii) This Agreement, the applicable Terms Agreement and any
Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(iii) The Offered Securities conform in all material respects to
the description thereof contained or incorporated by reference in the
Prospectus and such description conforms in all material respects to
the rights set forth in the instruments defining the same.
(iv) If the Offered Securities include Debt Securities, such
Debt Securities have been duly authorized and, when such Debt
Securities are duly executed, authenticated and delivered in the
manner provided for in the applicable Indenture and issued and paid
for in accordance with this Agreement and the applicable Terms
Agreement, such Debt Securities will
<PAGE> 17
17
constitute valid and binding obligations of the Company entitled to
the benefits of the applicable Indenture and enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; and, if the Offered Securities include
Subordinated Debt Securities that are convertible into Capital
Securities, then such Subordinated Debt Securities are convertible
into Capital Securities in accordance with their terms and the terms
of the Subordinated Indenture.
(v) If the Offered Securities include Preferred Stock, such
shares of Preferred Stock have been duly authorized and, when such
shares of Preferred Stock are duly executed and delivered and issued
and paid for in accordance with this Agreement and the applicable
Terms Agreement, such shares of Preferred Stock will have been validly
issued, fully paid and non-assessable and no holder thereof will be
subject to personal liability by reason of being such a holder; such
shares of Preferred Stock will not be subject to the preemptive rights
of any stockholder of the Company; and all corporate action required
to be taken for the authorization, issue and sale of such shares of
Preferred Stock has been validly and sufficiently taken; and, if the
Offered Securities include shares of Preferred Stock that are to be
represented by Depositary Shares, then, upon deposit by the Company of
such shares of Preferred Stock with the Depositary pursuant to the
Deposit Agreement and the execution by the Depositary of the
Depositary Receipts evidencing the Depositary Shares, such Depositary
Shares shall represent legal and valid interests in such shares of
Preferred Stock; and, if the Offered Securities, Debt Securities and
Debt Securities include shares of Preferred Stock that are convertible
into Capital Securities, Debt Securities or other preferred stock,
then such shares of Preferred Stock are convertible into Capital
Securities, Debt Securities or other preferred stock in accordance
with their terms and the terms of the Certificate of Amendment.
(vi) If the Offered Securities include Warrants, such Warrants
have been duly authorized and, when such Warrants are duly executed,
authenticated and delivered in the manner provided for in the Warrant
Agreement and issued and paid for in accordance with this Agreement
and the applicable Terms Agreement, such Warrants will constitute
valid and binding obligations of the Company entitled to the benefits
of the Warrant Agreement and enforceable against the Company in
accordance with their terms subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Warrants are exercisable for Debt
Securities, shares of Preferred Stock or Common Stock in accordance
with their terms and the terms of the Warrant Agreement.
<PAGE> 18
18
(vii) If the Offered Securities include Debt Securities or
Preferred Stock convertible into Debt Securities, the applicable
Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding instrument of
the Company enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and each
applicable Indenture has been duly qualified under the Trust
Indenture Act.
(viii) If the Offered Securities include Preferred Stock
convertible into Capital Securities or other preferred stock and/or
Subordinated Debt Securities convertible into Capital Securities, the
Capital Securities or other preferred stock issuable upon conversion
of the shares of Preferred Stock pursuant to their terms and the terms
of the Certificate of Amendment and/or the Capital Securities issuable
upon conversion of the Subordinated Debt Securities pursuant to their
terms and the terms of the Subordinated Indenture, have been duly
authorized and validly reserved for issuance upon such conversion by
all necessary corporate action and such Capital Securities or other
preferred stock, when issued upon such conversion, will be validly
issued, fully paid and nonassessable and no holder thereof will be
subject to personal liability by reason of being such a holder; and
the issuance of such Capital Securities or other preferred stock upon
such conversion will not be subject to preemptive rights.
(ix) If the Offered Securities include Depositary Shares, the
Deposit Agreement has been duly authorized, executed and delivered by
the Company, and assuming due authorization, execution and delivery
thereof by the Depositary, constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(x) If the Offered Securities include Warrants, the Warrant
Agreement has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery
thereof by the Warrant Agent, constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(xi) The issue and sale of the Offered Securities and the
performance by the Company of its obligations under the Offered
Securities, the Indenture
<PAGE> 19
19
and this Agreement or other agreement pursuant to which the
Underwriters purchase Offered Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, rule or regulation, any
agreement or instrument known to such counsel to which the Company is
a party or by which it is bound, the Company's Articles of
Incorporation or Regulations, or any order known to such counsel of
any court or governmental agency or body having jurisdiction over the
Company.
(xii) No consent, approval, authorization, order, registration
or qualification of or filing with any court or governmental agency or
body is required for the issue and sale of Securities or the
consummation of the other transactions contemplated by this Agreement,
any applicable Terms Agreement or other agreement pursuant to which an
Underwriter purchases Securities, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained
under the Securities Act and the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection with
purchases of Securities.
(xiii) The Registration Statement has become effective under the
Securities Act; any required amendment or supplement to the Prospectus
has been filed as required by Section 4(a) hereof; and to the best
knowledge of such counsel no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for
that purpose has been instituted or threatened by the Commission.
(xiv) Such counsel is of the opinion ascribed to it in the
Prospectus under the caption "United States Federal Taxation", if any.
(xv) The Registration Statement and the Prospectus, each as
amended or supplemented on the Closing Date (except for the financial
statements and other financial and statistical data contained therein
or omitted therefrom and the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of the Trustee as to which such counsel need
express no opinion) complied as to form in all material respects with
the requirements of the Act and the Exchange Act and the respective
rules thereunder, and such counsel has no reason to believe that the
Registration Statement, as amended (except for the financial
statements and other financial or statistical data contained or
incorporated therein or omitted therefrom and the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee as
to which such counsel need express no opinion) at the time it became
effective and at the date of this Agreement, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended
<PAGE> 20
20
or supplemented (except for the financial statements and other
financial or statistical data contained or incorporated therein or
omitted therefrom and the Statement of Eligibility (Form T-1 under the
Trust Indenture Act of the Trustee as to which such counsel need
express no opinion) as of the Closing Date, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to be
filed which is not filed as required.
Such opinion or opinions shall be to such further effect with respect to
other legal matters relating to this Agreement, any Delayed Delivery
Contracts and the sale of the Offered Securities, pursuant to this
Agreement as counsel for the Underwriters may reasonably request. Such
opinion or opinions shall be limited to New York, Ohio, Washington and
federal law and, if applicable, the law of the state of incorporation of
any other Significant Subsidiary. In giving such opinion, such counsel may
rely, as to all matters governed by the laws of jurisdictions in which such
counsel is not qualified and the federal law of the United States, upon
opinions of other counsel, who shall be counsel satisfactory to counsel for
the Underwriters, in which case the opinion shall state that they believe
you and they are entitled to so rely. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company, the
National Banks and the State Banks and the Significant Subsidiaries and
certificates of public officials.
In rendering their opinion, such counsel may rely upon the opinion of
Shearman & Sterling referred to below as to any matters governed by New
York law covered therein.
(d) At the applicable Closing Date, you shall have received the
favorable opinion of Shearman & Sterling, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, together with signed or
reproduced copies of such opinion for each of the other Underwriters, to
the effect that the opinion delivered pursuant to Section 5(c) appears on
its face to be appropriately responsive to the requirements of this
Agreement and the applicable Terms Agreement and with respect to the
incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as you
reasonably may request and such counsel shall have received such papers and
information as they request to enable them to pass upon such matters. In
rendering their opinion, such counsel may rely upon the opinion rendered on
behalf of the Company referred to above as to all matters governed by Ohio
law.
<PAGE> 21
21
(e) At or prior to the time of execution of the applicable Terms
Agreement and on the Closing Date, you shall have received a letter from
Ernst & Young, dated the date of delivery thereof, to the effect set forth
in Exhibit II hereto.
(f) You shall have received from the Company a certificate, signed by
the Chairman of the Board, the President or an Executive Vice President,
and by the principal financial or accounting officer, of the Company, dated
the Closing Date, to the effect that, to the best of their knowledge based
upon reasonable investigation:
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is threatened by the Commission.
(g) The Securities shall have been duly authorized for listing on
such exchange, if any, and at such time as specified in the applicable
Terms Agreement.
(h) In the event the Underwriters exercise their option provided in a
Terms Agreement to purchase all or a portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Option Securities Closing Date, and you shall
have received:
(1) A certificate, dated such Option Securities Closing Date,
signed by the Chairman of the Board, the President or an Executive
Vice President, and by the principal financial or accounting officer
of the Company, confirming that the certificate delivered at the
Closing Date pursuant to Section 5(f) hereof remains true and correct
as of such Option Securities Closing Date.
(2) The favorable opinion of the General Counsel or any Senior
Managing Counsel to the Company and/or Thompson, Hine and Flory,
special tax Counsel to the Company, in the form and substance
satisfactory to Counsel for the Underwriters, dated the Option
Securities Closing Date, relating to the Option Securities and
otherwise in substantially to the same effect as the opinion
required by Section 5(c) hereof.
(3) The favorable opinion of Shearman & Sterling, Counsel for
the Underwriters, dated the Option Securities Closing Date, relating
to the Option
<PAGE> 22
22
Securities and otherwise in substantially to the same effect as the
opinion required by Section 5(d) hereof.
(4) A letter from Ernst & Young in the form and substance
satisfactory to you and dated the Option Securities Closing Date,
substantially the same in scope and substance as the letter furnished
to you pursuant to Section 5(e) hereof, except that the "specified
date" in the letter shall be a date not more than five days prior to
such Option Securities Closing Date.
(i) The Company shall have furnished to you such further certificates
and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you. The Company will furnish you with such conformed copies of
such opinions, certificates, letters and other documents as you shall reasonably
request. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
applicable Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof.
Notwithstanding any such termination, the provisions of Sections 6, 7, 8 and 9
shall remain in effect.
6. Underwriters' Expenses. If the sale of the Securities provided
----------------------
for herein is not consummated by reason of any failure, refusal or inability on
the part of the Company to perform any agreement on its part to be performed, or
because any other condition of the Underwriters' obligations hereunder required
to be fulfilled by the Company is not fulfilled, other than by reason of a
default by any of the Underwriters or the occurrence of any event specified in
clause (ii), (iii) or (v) of Section 5(b), the Company will reimburse the
Underwriters severally upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities. Except as otherwise provided for herein or in the applicable Terms
Agreement, the Underwriters shall pay their own expenses (including fees and
disbursements of counsel) in connection with the offering and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company will
--------------------------------
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
part of the Registration Statement when such part became effective, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any other prospectus with respect to the Securities, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary
<PAGE> 23
23
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that (i)
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by you, or by any Underwriter through you, specifically for use
therein and (ii) such indemnity with respect to any Preliminary Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) to the extent that any such loss, claim, damage or liability of
such Underwriter results from the fact that such Underwriter sold Securities to
a person as to whom it shall be established that there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) in any
case where such delivery is required by the Securities Act if the Company has
previously furnished copies thereof in sufficient quantity to such Underwriter
and the loss, claim, damage or liability of such Underwriter results from an
untrue statement or omission of a material fact contained in the Preliminary
Prospectus which was corrected in the Prospectus (excluding documents
incorporated by reference) or in the Prospectus as then amended or supplemented
(excluding documents incorporated by reference).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any part of the Registration Statement when such part became
effective, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or any other prospectus relating to the Securities, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made therein in reliance upon and in conformity with written
information furnished to the Company by you, or by such Underwriter through you,
specifically for use therein, and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending against any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be
<PAGE> 24
24
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that, if the defendants in any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party and
representations of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them, the indemnified party
or parties shall have the right to select separate counsel to participate in the
defense of such action on behalf of such indemnified party or parties (and the
reasonable fees and expenses of one such separate counsel shall be paid by the
indemnifying party). No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities,
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total proceeds from the offering of the Securities
(before deducting expenses) received by the Company bear to the total
compensation or profit (before deducting expenses) received or realized by the
Underwriters from the purchase and resale, or underwriting, of the Securities.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in the
first sentence of this subsection (d). The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such
<PAGE> 25
25
indemnified party in connection with investigating or defending against any
action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute shall be several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Securities Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Securities Act.
8. Representations and Agreements to Survive Delivery. All
--------------------------------------------------
representations, warranties, indemnities and agreements of the Company herein or
in certificates of officers of the Company delivered pursuant hereto, and the
agreements of the several Underwriters contained in Section 7 hereof, shall
remain operative and in full force and effect regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person, or the Company or any of its officers,
directors or any controlling person, and shall survive delivery of and payment
for the Securities.
9. Substitution of Underwriters. If one or more of the Underwriters
----------------------------
participating in an offering of Offered Securities shall fail at the applicable
Closing Date to purchase the Offered Securities which it or they are obligated
to purchase hereunder and under the applicable Terms Agreement (the "Defaulted
Securities"), you shall have the right, within 36 hours thereafter, to make
arrangements satisfactory to you and the Company for one or more of the
nondefaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, you have not completed such
arrangements within such 36-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Offered Securities to be purchased pursuant to such Terms
Agreement, the
<PAGE> 26
26
nondefaulting Underwriters named in such Terms Agreement shall be obligated
to purchase the full amount thereof in the proportions that their
respective underwriting obligations bear to the underwriting obligations of
all nondefaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Offered
Securities to be purchased pursuant to such Terms Agreement, the applicable
Terms Agreement shall terminate without liability on the part of any
nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default that does not result in the
termination of the applicable Terms Agreement, either you or the Company shall
have the right to postpone the applicable Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 9.
10. Notices. All notices or communications hereunder shall be in
-------
writing and if sent to you shall be mailed, delivered, telexed or telecopied and
confirmed to you at the address set forth for that purpose in the Terms
Agreement, or if sent to the Company, shall be mailed, delivered, telexed,
telecopied or telegraphed and confirmed to the Company at 127 Public Square,
Cleveland, Ohio 44114, Attention: Secretary and General Counsel, telecopy
---------
number: (216) 689-5681, with a copy to Senior Managing Counsel -- Securities.
---- --
Notice to any Underwriter pursuant to Section 7 hereof shall be mailed,
delivered, telexed, telecopied or telegraphed and confirmed to such
Underwriter's address as it appears in such Underwriter's questionnaire or other
notice furnished to the Company in writing for the purpose of communications
hereunder. Any party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new address for
such purpose.
11. Parties. This Agreement shall inure solely to the benefit of and
-------
be binding upon the Company and the Underwriters and their respective successors
and the controlling persons, officers and directors referred to in Section 7
hereof, and no other person will have any right or obligation hereunder. In all
dealings with the Company under this Agreement, you shall act on behalf of each
of the several Underwriters, and any action under this Agreement taken by you or
by any one of you designated in the applicable Terms Agreement will be binding
upon all the Underwriters.
12. Applicable Law. This Agreement shall be governed by, and
--------------
construed in accordance with, the laws of the State of New York.
<PAGE> 27
EXHIBIT A
KEYCORP
(an Ohio corporation)
[Title of Securities]
TERMS AGREEMENT
---------------
Dated: ______________, 199_
To: KeyCorp
127 Public Square
Cleveland, Ohio 44114
Attention:
Dear Sirs:
We (the "Representative") understand that KeyCorp, an Ohio corporation
(the "Company"), proposes to issue and sell [[$ aggregate principal amount] of
its [senior debt securities] [and] [subordinated [convertible] debt securities]
(the "Debt Securities")] [and] [_________ shares of its [convertible]] preferred
stock (the "Preferred Stock")] [________ depositary shares (the "Depositary
Shares") each representing ______ of a share of ____ preferred stock]. Subject
to the terms and conditions set forth herein or incorporated by reference
herein, the Underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the respective amounts of [Debt Securities] [and]
[Preferred Stock] [Depositary Shares] set forth below.
Principal Principal Principal
Amount of Amount of Amount of
Name of Debt Preferred Depositary
Underwriter Securities Stock Shares
- ------------- ---------- --------- ----------
_________ ________ _________
Total $_________ $________ $_________
<PAGE> 28
A-2
Debt Securities
---------------
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount, plus accrued
interest, if any, [or amortized original
issue discount, if any,] from ____, 19__.
Purchase price: % of the principal amount, plus accrued
interest, if any, [or amortized original
issue discount, if any,] from ____, 19__
(payable in next day funds).
Listing requirement: [None] [NYSE] [OTHER]
Convertible:
Conversion provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
<PAGE> 29
A-3
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
<PAGE> 30
A-4
Preferred Stock
---------------
Title of Preferred Stock:
Principal amount to be issued: $
Currency:
Annual cash dividend rate: % Payable:
Liquidation preference per Share:
Initial public offering price: %, plus accrued interest or amortized original
issue discount, if any, from ______, 19___.
Purchase price: %, plus accrued interest or amortized original
issue discount, if any, from ______, 19____
(payable in next day funds).
Listing requirement: [None] [NYSE] [OTHER]
Convertible:
Initial Conversion price: $___ per share of [Common Stock] [Preferred
Stock] [Capital Securities].
Other conversion provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
<PAGE> 31
A-5
Depositary Shares
-----------------
Title of Depositary Shares:
Principal amount to be issued: $
Currency:
Fractional amount of Preferred
Stock represented by
each Depositary Share:
Initial public offering price
per Depositary Share: % of the principal amount, plus accrued
interest [or amortized original issue
discount], if any, from _______, 19__.
Purchase price per Depositary Share:
(amount equal to the initial public
offering price set forth above, less
$_____ per Depositary Share):
Annual cash dividend amount: $ Payable:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
<PAGE> 32
A-6
Warrants
--------
Title of Warrants:
Number to be issued:
Currency:
Initial public offering price per Warrant: $
Purchase price per Warrant: $
Listing requirement: [None] [NYSE] [OTHER]
Exercisable for:
Exercise price:
Exercise provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Other terms and conditions:
Each Underwriter severally agrees, subject to the terms and provisions
of the above referenced Underwriting Agreement Standard Provisions which is
incorporated herein in its entirety and made a part hereof, to purchase the
principal amount of Offered Securities set forth opposite its name and a
proportionate share of Option Securities to the extent any are purchased.
This Agreement shall be governed by and construed in accordance with,
the laws of the State of New York.
<PAGE> 33
A-7
If the foregoing is in accordance with your understanding of the
agreement between you and the Company, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts and
together with the Underwriting Agreement Standard Provisions, shall be a binding
agreement between the Underwriters named herein and the Company in accordance
with its terms and the terms of the Underwriting Agreement Standard Provisions.
[Representative[s]]
By ______________________________________
Acting on behalf of themselves and the
other named Underwriters
Confirmed and accepted as of
the date first above written:
KeyCorp
By _________________________
Name and Title:
<PAGE> 34
EXHIBIT I
KEYCORP
[Title of Securities]
DELAYED DELIVERY CONTRACT
-------------------------
_________________________________________________________________
[Insert date]
KeyCorp
[Names of Representatives]
Gentlemen:
The undersigned hereby agrees to purchase from KeyCorp (the
"Company"), and the Company agrees to sell to the undersigned, as of the date
hereof, for delivery on _______, 19__ ("Delivery Date") $_________ principal
amount of the Company's [insert title of Security] (the "Securities"), offered
by the Company's Prospectus relating thereto, receipt of a copy of which is
hereby acknowledged, at a purchase price of [__% of the principal amount thereof
plus accrued interest, if any, from ______, 19__,] [and $____ per share of
Preferred Stock] [and $_____ per Warrant, respectively] to the Delivery Date and
on the further terms and conditions set forth in this contract.
Payment for the Securities that the undersigned has agreed to purchase
for delivery on a Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House (next day) funds at
the office of _______________________ at _____ A.M. on that Delivery Date upon
delivery to the undersigned of the Securities to be purchased by the undersigned
for delivery on that Delivery Date in definitive form and in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to that Delivery Date.
The obligation of the Company to make delivery of and accept payment
for, and the obligation of the undersigned to take delivery of and make payment
for, Securities on the Delivery Date shall be subject only to the conditions
that (1) investment in the Securities shall not on the Delivery Date be
prohibited under the laws of any jurisdiction to which the undersigned is
subject, which investment the undersigned represents is not prohibited on the
date hereof, and (2) the Company, on or before _______, 19__, shall have sold to
the
<PAGE> 35
I-2
Underwriters the amount of the Securities to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus mentioned above.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of
$__________ and that the acceptance of this contract and any other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is so mailed or
delivered.
<PAGE> 36
I-3
This contract shall be governed by, and construed in accordance with,
the laws of the State of New York.
Very truly yours,
________________________________________
(Name of Purchaser)
By:
________________________________________
(Title of Signatory)
________________________________________
________________________________________
(Address of Purchaser)
Accepted, as of the above date.
KeyCorp
By: ___________________________
[Insert title]
<PAGE> 37
EXHIBIT II
Pursuant to Section 5(e) of the Underwriting Agreement, the
independent auditors shall furnish letters to the Underwriters to the effect
that:
(1) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the Securities Act and the
applicable published Securities Act Regulations.
(2) In their opinion, the consolidated financial statements and any
supplemental financial information or schedules audited by them and included or
incorporated by reference in the Registration Statement or Prospectus comply as
to form in all material respects with the applicable accounting requirements of
the Securities Act or the Exchange Act, as applicable, and the published rules
and regulations thereunder.
(3) On the basis of procedures referred to in such letter, including
a reading of the minute books of the Company since the end of the most recent
fiscal year with respect to which an audit report has been issued, performing
the procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described in SAS
No. 71, Interim Financial Information, on the unaudited consolidated interim
financial statements of the Company included or incorporated by reference in the
Registration Statement and Prospectus and reading the internal unaudited
consolidated interim financial data, if any, for the period from the date of the
latest balance sheet included or incorporated by reference in the Registration
Statement and Prospectus to the date of the latest available internal interim
financial data (which internal unaudited interim financial data, if any, will be
attached to each such letter to the Underwriters); and making inquiries of
officials of the Company responsible for financial and accounting matters
(including inquiries with respect to whether the unaudited consolidated
financial statements comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters whether the internal unaudited consolidated interim financial statements
are stated on a basis substantially consistent with that of the audited
consolidated financial statements incorporated by reference in the Registration
Statement), nothing caused them to believe that:
(A) (i) any material modifications should be made to the unaudited
consolidated financial statements included in any Quarterly Reports on Form
10-Q which are incorporated by reference in the Registration Statement or
Prospectus (the "10-Q Financials") for them to be in conformity with
generally accepted accounting principles applicable to such financial
statements and (ii) the 10-Q Financials do not comply as to form in all
material respects with the applicable requirements of the Exchange Act as
it applies to Form 10-Q and the related published rules and regulations; or
(B) the internal unaudited consolidated interim financial statements
of the Company are not in conformity with generally accepted accounting
principles applied
<PAGE> 38
II-2
on a basis substantially consistent with that of the audited consolidated
financial statements incorporated by reference in the Registration
Statement; or
(C) at the date of the latest available internal unaudited
consolidated interim financial statements of the Company, there was any
decrease in consolidated shareholders' equity as compared with amounts
shown in the latest balance sheet included or incorporated by reference in
the Prospectus except in all instances for decreases that the Prospectus
discloses have occurred or may occur or as may be set forth in such letter;
or
(D) for the period from the date of the latest balance sheet included
or incorporated by reference in the Prospectus to the date of the latest
available internal financial statements of the Company, there was any
decrease, as compared with the corresponding period of the previous year,
in consolidated net interest income, consolidated net interest income after
provision for possible loan losses, consolidated income before taxes or in
the total or per common share amounts of consolidated net income, except in
all cases for changes or decreases that the Prospectus discloses have
occurred or may occur or as may be set forth in such letter;
(E) as of a specified date not more than five days prior to the date
of delivery of such letter to the Representative(s), there was any decrease
in consolidated shareholders' equity as compared with the [amount shown in
the latest balance sheet included or incorporated by reference in the
Prospectus/amount shown in the latest internal unaudited consolidated
interim financial statements], except for any decrease that the
Registration Statement discloses has occurred or may occur.
(4) In addition to their examination referred to in their reports
incorporated by reference in the Registration Statement and Prospectus and the
procedures referred to in (3) above, (a) they have carried out certain other
procedures, not constituting an audit, with respect to certain of the dollar
amounts, percentages and other financial information (in each case to the
extent that such dollar amounts, percentages and other financial information,
either directly or by analysis or computation, are derived from the general
accounting records of the Company and its subsidiaries) which are included or
incorporated by reference in the Prospectus (other than those appearing in the
audited financial statements included therein) and appear in the Prospectus or
incorporated documents, as agreed to by officers of the Company and the
Representative(s), and have found such dollar amounts, percentages and
financial information to be in agreement with the general accounting records of
the Company and its subsidiaries and (b) if any pro forma financial information
is included or incorporated by reference in the Registration Statement and
Prospectus, they have carried out other procedures, not constituting an audit,
with respect to such pro forma financial information and indicated the results
thereof, if requested by the Representative(s) and agreed to by officers of
the Company.
<PAGE> 1
Exhibit 1(b)
KeyCorp
$750,000,000
Senior Medium-Term Notes, Series C
Subordinated Medium-Term Notes, Series B
Due 9 months or more from Date of Issue
DISTRIBUTION AGREEMENT
----------------------
March 31, 1995
------------
SALOMON BROTHERS INC
SEVEN WORLD TRADE CENTER
NEW YORK, NEW YORK 10048
CS FIRST BOSTON CORPORATION
Park Avenue Plaza
55 East 52nd Street
New York, New York 10005
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
Dear Sirs:
KeyCorp, an Ohio corporation (the "Company"), confirms its agreement
with each of you with respect to the issue and sale from time to time by the
Company of its Senior Medium-Term Notes, Series C and Subordinated Medium-Term
Notes, Series B due 9 months or more from date of issue (the "Notes") in an
<PAGE> 2
2
aggregate initial offering price of up to $750,000,000 (or the equivalent
thereof in one or more foreign currencies or composite currencies), as such
amount shall be reduced by the aggregate initial offering price of any other
debt securities issued by the Company, whether within or without the United
States ("Other Securities") pursuant to the registration statement referred to
below, and agrees with each of you (individually, an "Agent", and collectively,
the "Agents", which term shall include any additional agents appointed pursuant
to Section 13 hereof) as set forth in this Agreement. The Notes may be issued
as senior indebtedness (the "Senior Notes") or as subordinated indebtedness (the
"Subordinated Notes") of the Company. The Senior Notes will be issued under an
indenture, dated as of June 10, 1994 (as the same may be supplemented or
amended from time to time, the "Senior Indenture"), between the Company and
Bankers Trust Company, as Trustee (the "Senior Trustee"), and the Subordinated
Notes will be issued under an indenture, dated as of June 10, 1994 (as the
same may be supplemented or amended from time to time, the "Subordinated
Indenture"), between the Company and Bankers Trust Company, as Trustee (the
"Subordinated Trustee"). The Senior Indenture and Subordinated Indenture are
herein sometimes collectively referred to individually as an "Indenture" and
collectively as "Indentures" and the Senior Trustee and Subordinated Trustee are
herein sometimes collectively referred to individually as a "Trustee" and
collectively as the "Trustees". Wherever the terms "Indenture" and "Trustee"
are used with respect to a specific issuance of Notes they shall mean the Senior
Indenture and Senior Trustee, in the case of an issuance of unsecured and
unsubordinated Notes, and the Subordinated Indenture and Subordinated Trustee,
in the case of an issuance of unsecured and subordinated Notes. The Notes shall
have the maturities, interest rates, redemption provisions, if any, and other
terms set forth in the supplement to the Basic Prospectus referred to below.
The Notes will be issued, and the terms and rights thereof established, from
time to time by the Company in accordance with the Indenture.
On the basis of the representations and warranties herein contained,
but subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Notes directly to investors (other than broker-
dealers, except as provided in Section 2(a)) on its own behalf, the Company
hereby (i) appoints the Agents as the agents of the Company for the purpose of
soliciting and receiving offers to purchase Notes from the Company by others
pursuant to Section 2(a) hereof and (ii) agrees that, except as otherwise
contemplated herein, whenever it determines to sell Notes directly to any Agent
as principal, it will enter into a separate agreement (each such agreement a
"Terms Agreement"), substantially in the form of Exhibit A hereto, relating to
such sale in accordance with Section 2(b) hereof.
The Company has prepared and filed a registration statement on Form
S-3 (No. ), including a prospectus, relating to the Notes with the
Securities and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act").
The Company also has filed with, or proposes to file with, the Commission
pursuant to Rule 424 under the Securities Act
<PAGE> 3
3
supplements to the Basic Prospectus included in the Registration Statement that
will describe certain terms of the Notes. The Registration Statement, including
the exhibits thereto, as amended to the Commencement Date (as hereinafter
defined) is hereinafter referred to as the "Registration Statement" and the
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement or supplements (each a "Prospectus
Supplement") specifically relating to the Notes in the form filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under the
Securities Act is hereinafter referred to as the "Prospectus". Any reference in
this Agreement to the Registration Statement, the Basic Prospectus, any
preliminary form of Prospectus (a "preliminary prospectus") previously filed
with the Commission pursuant to Rule 424 or the Prospectus shall be deemed to
refer to and include the documents, if any, incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act which were filed under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Exchange Act") on or before the
date of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus, including any
supplement to the Prospectus that sets forth only the terms of a particular
issue of the Notes (a "Pricing Supplement"), shall be deemed to refer to and
include any documents filed under the Exchange Act after the date of this
Agreement, or the date of the Basic Prospectus, any preliminary prospectus or
the Prospectus, as the case may be, which are deemed to be incorporated by
reference therein.
1. Representations. The Company represents and warrants to, and
---------------
agrees with, each Agent as of the Commencement Date (as hereinafter defined), as
of each date on which you solicit offers to purchase Notes, as of each date on
which the Company accepts an offer to purchase Notes (including any purchase by
an Agent as principal pursuant to a Terms Agreement or otherwise), as of each
date the Company issues and sells Notes and as of each date the Registration
Statement or the Basic Prospectus is amended or supplemented, as follows (it
being understood that such representations and warranties shall be deemed to
relate to the Registration Statement, the Basic Prospectus and the Prospectus,
each as amended or supplemented to each such date):
(a) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission.
(b) The Company meets the requirements for use of Form S-3 under the
Securities Act and the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the
<PAGE> 4
4
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act"); each part of the Registration Statement and any
amendment or supplement thereto, as of the date such part became or becomes
effective, did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; each Prospectus,
and any amendment or supplement thereto, as of the date thereof, did not or
will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Agent
specifically for use in connection with the preparation of the Registration
Statement and such Prospectus.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, comply, or will comply, as the case may be, in all material respects to
the requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, or any
amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) (i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Ohio, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, and is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as
amended, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure
to be so qualified or in good standing, considering all such cases in the
aggregate, does not involve a material risk to the business, properties,
financial position or results of operations of the Company and its
subsidiaries; (ii) each of its national bank
<PAGE> 5
5
subsidiaries is a duly organized and validly existing national banking
association under the laws of the United States, continues to hold a valid
certificate to do business as such and has full power and authority to
conduct its business as such; each of its state-chartered bank subsidiaries
is a duly organized and validly existing state-chartered bank under the
laws of the jurisdiction of its organization, continues to hold a valid
certificate to do business as such and has full power and authority to
conduct its business as such; each of its federal savings association
subsidiaries is a duly organized and validly existing federal savings
association under the laws of the United States, continues to hold a valid
certificate to do business as such and has full power and authority to
conduct its business as such; each of its other significant subsidiaries,
as defined in Regulation S-X (the "Significant Subsidiaries"), is duly
organized and validly existing under the laws of the jurisdiction of its
organization with corporate power and authority under such laws to conduct
its business; and (iii) all of the outstanding shares of capital stock of
each such subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable (except, with respect to any subsidiary that
is a national bank, as provided by Section 55 of Title 12 of the United
States Code; and, with respect to any subsidiary that is a bank
incorporated under state law, except as provided by the laws of any such
states and except as otherwise stated in the Registration Statement) are
owned beneficially by the Company subject to no security interest, pledge,
lien, charge or other encumbrance or adverse claim.
(e) Each of this Agreement and any other applicable Terms Agreement
has been duly authorized, executed and delivered by the Company.
(f) The Notes have been duly authorized and established in conformity
with the provisions of the relevant Indenture, and, when issued and
delivered in accordance with the Indenture and delivered to and paid for by
the purchasers thereof in accordance with this Agreement and any applicable
Terms Agreement, will have been duly executed, issued and delivered by the
Company and will constitute valid and binding obligations of the Company
enforceable in accordance with their terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and will be entitled to the benefits provided by the
Indenture, the Indenture has been duly authorized, executed and delivered
by the Company and qualified under the Trust Indenture Act and constitutes
a valid and binding instrument enforceable in accordance with its terms
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture
conforms, and the Notes of any particular issuance of Notes will conform in
all material respects, to the summary descriptions thereof in the
Prospectus as amended or supplemented to relate to such issuance of Notes.
<PAGE> 6
6
(g) The execution and delivery by the Company of this Agreement, the
Notes, the Indentures and any applicable Terms Agreement, the issue and
sale of the Notes and the performance by the Company of all of its
obligations under this Agreement, the Notes, the Indentures and any Terms
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such action contravene or result in any violation of the
provisions of the Amended and Restated Articles of Incorporation or the
Regulations of the Company or any applicable statute, rule or regulation or
to the best of its knowledge, any order of any court or governmental agency
or body having jurisdiction over the Company, its subsidiaries or any of
their respective properties.
(h) To the knowledge of the Company and except as set forth in the
Prospectus, there is no threatened action, suit or proceeding that could
reasonably be expected to result in any material adverse change in the
condition (financial or other), business or results of operations of the
Company and its subsidiaries, or could reasonably be expected to materially
and adversely affect the properties or assets thereof.
(i) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or other), business or
results of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus.
(j) The Company has complied and will comply with all applicable
provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida
Statutes, and all regulations promulgated thereunder relating to issuers
doing business in Cuba.
(k) Immediately after any sale of Notes by the Company hereunder or
under any applicable Terms Agreement, the aggregate amount of Notes which
shall have been issued and sold by the Company hereunder or under any Terms
Agreement and of any securities of the Company (other than the Notes) that
shall have been issued and sold pursuant to the Registration Statement will
not exceed the amount of securities registered under the Registration
Statement.
2. Solicitations as Agent; Purchases as Principal. (a)
----------------------------------------------
Solicitations as Agent. On the basis of the representations and warranties
- ----------------------
herein contained, but subject to
<PAGE> 7
7
the terms and conditions herein set forth, each of the Agents hereby severally
and not jointly agrees, as agent of the Company, to use its reasonable efforts
to solicit offers to purchase the Notes from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from time to
time. So long as this Agreement shall remain in effect with respect to any
Agent, the Company shall not, without the consent of such Agent, solicit or
accept offers to purchase, or sell, Notes or any other debt securities with a
maturity at the time of original issuance of 9 months or more except pursuant
to this Agreement and any Terms Agreement, or except pursuant to a private
placement not constituting a public offering under the Securities Act or except
in connection with a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of medium-term debt
securities. However, the Company reserves the right to sell, and may solicit
and accept offers to purchase, Notes directly on its own behalf to investors
(other than broker-dealers, except to the extent set forth in the next
succeeding sentence). The Company may also sell Notes to an Agent acting as
principal for its own account or for resale to one or more investors. The
Company may from time to time offer Notes for sale otherwise than through an
Agent; provided, however, that so long as this Agreement shall be in effect the
Issuer shall not solicit or accept offers to purchase Notes through any agent
other than an Agent without amending this Agreement to appoint such agent an
additional Agent hereunder on the same terms and conditions as provided herein
for the Agents and without giving the Agents prior notice of such appointment;
except, that if from time to time the Company is approached by a prospective
agent offering to solicit a specific purchase of Notes, the Company may engage
such agent with respect to such specific purchase, only if, (i) such agent is
engaged on terms substantially similar (including the same commission schedule
as set forth herein) to the applicable terms of this Agreement (without being
required to become a party hereto) and (ii) the Agents are given notice of such
purchase promptly, in each case after the purchase is agreed to.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of at least one business
day's prior notice from the Company, each Agent will suspend solicitation of
offers to purchase Notes from the Company until such time as the Company has
advised such Agent or Agents that such solicitation may be resumed. During the
period of time that such solicitation is suspended, the Company shall not be
required to deliver any opinions, letters or certificates in accordance with
Sections 4(i), 4(j) and 4(k); provided that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered for
the Notes or for a change that the Agents deem to be immaterial), no Agent shall
be required to resume soliciting offers to purchase Notes until the Company has
delivered such opinions, letters and certificates as such Agent may request.
The Company agrees to pay each Agent, as consideration for the sale of
each Note resulting from a solicitation made or an offer to purchase received by
such Agent, a
<PAGE> 8
8
commission in the form of a discount from the purchase price of such Note in an
amount equal to the following applicable percentage of the principal amount of
such Note sold:
<TABLE>
<CAPTION>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Notes sold)
- ------------------- ----------------
<S> <C>
From 9 months to less than 1 year................... .125%
From 1 year to less than 18 months.................. .150%
From 18 months to less than 2 years................. .200%
From 2 years to less than 3 years................... .250%
From 3 years to less than 4 years................... .350%
From 4 years to less than 5 years................... .450%
From 5 years to less than 6 years................... .500%
From 6 years to less than 7 years................... .550%
From 7 years to less than 10 years.................. .600%
From 10 years to less than 15 years................. .625%
From 15 years to less than 20 years................. .700%
From 20 years to 30 years........................... .750%
Greater than 30 years............................... Negotiated at the
time of issuance
</TABLE>
The Agents are authorized to solicit offers to purchase Notes only in
the principal amount of $100,000 (or, in the case of Notes not denominated in
U.S. dollars, the equivalent thereof in the applicable foreign currency or
composite currency, rounded down to the nearest 1,000 units of such foreign
currency or composite currency) or any amount in excess thereof which is an
integral multiple of $1,000 (or, in the case of Notes not denominated in U.S.
dollars, 1,000 units of such foreign currency or composite currency). Each
Agent shall communicate to the Company, orally or in writing, each offer to
purchase Notes received by such Agent as agent that in its judgment should be
considered by the Company. The Company shall have the sole right to accept
offers to purchase the Notes and may reject any such offer in whole or in part.
Each Agent shall have the right, in its sole discretion, to reject any offer to
purchase Notes, as a whole or in part, that it considers to be unacceptable and
any such rejection shall not be deemed a breach of its agreements herein
contained. The procedural details relating to the issue and delivery of Notes
sold by an Agent as agent and the payment therefor are set forth in the
Administrative Procedures (as hereinafter defined).
(b) Purchase as Principal. Each sale of Notes to any Agent as
---------------------
principal shall be made in accordance with the terms of this Agreement and
(unless such Agent shall otherwise agree) a Terms Agreement which will provide
for the sale of such Notes to, and
<PAGE> 9
9
the purchase and reoffering thereof by, such Agent. Each Terms Agreement will
take the form of Exhibit A hereto but may take the form of either (i) a written
agreement between you and the Company which may be substantially in the form of
Exhibit A hereto or (ii) an oral agreement between you and the Company confirmed
in writing by you to the Company.
The commitment of any Agent to purchase Notes as principal, whether
pursuant to any Terms Agreement or otherwise, shall be deemed to have been made
on the basis of the representations and warranties (made or deemed to have been
made as of the date of the Terms Agreement and as of the Time of Delivery (as
defined below)) of the Company herein contained and shall be subject to the
terms and conditions set forth herein and in the applicable Terms Agreement.
Each Terms Agreement by an Agent to purchase Notes as principal (pursuant to a
Terms Agreement or otherwise) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the price to be paid to the Company
for such Notes, the maturity date of such Notes, the interest rate or interest
rate basis, if any, applicable to such Notes, any other terms of such Notes, the
time and date and place of delivery of and payment for such Notes (the time and
date of any and each such delivery and payment, the "Time of Delivery"), any
provisions relating to rights of, and default by, underwriters acting together
with such Agent in the reoffering of Notes, and shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. Unless otherwise specified in a
Terms Agreement, the procedural details relating to the issue and delivery of
Notes purchased by an Agent as principal and the payment therefore shall be as
set forth in the Administrative Procedures.
Unless otherwise specified in a Terms Agreement, if you are purchasing
Notes as principal you may resell such Notes to other dealers or to investors
and other purchasers. Any such sales to other dealers may be at a discount,
which shall not exceed the amount set forth in the Prospectus Supplement
relating to such Notes. Any such sales to investors and other purchasers may be
at prevailing market prices, or prices related thereto at the time of such
resale, at negotiated prices or otherwise, as determined by the Agent.
(c) Obligations Several. The Company acknowledges that the
-------------------
obligations of the Agents are several and not joint and, subject to the
provisions of this Section 2, each Agent shall have complete discretion as to
the manner in which it solicits purchasers for the Notes and as to the identity
thereof.
(d) Administrative Procedures. The Agents and the Company agree to
-------------------------
perform their respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (the
"Administrative Procedures") attached hereto as Exhibit B, as the same may be
amended from time to time. The Administrative Procedures may be amended only by
written agreement of the Company and the Agents.
<PAGE> 10
10
3. Commencement Date. The documents required to be delivered
-----------------
pursuant to Section 6 hereof on the Commencement Date (as defined below) or as
a condition precedent to your obligation to begin soliciting offers to
purchase Notes as agent of the Company shall be delivered to the Agents at the
offices of Shearman & Sterling, 599 Lexington Avenue, New York, New York, at
11:00 A.M., New York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement between the Agents and the
Company but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Notes is commenced or the first date on
which the Company accepts an offer by any Agent to purchase Notes as principal
(such time and date being referred to herein as the "Commencement Date").
4. Covenants of the Company. The Company covenants and agrees
------------------------
with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus prior to the termination of the offering of the
Notes pursuant to this Agreement or any Terms Agreement which shall be
reasonably disapproved by any Agent after reasonable opportunity to comment
thereon, provided, however, that the foregoing shall not apply to any of
the Company's periodic filings with the Commission described in subsection
(iii) below, copies of which filings the Company will cause to be delivered
to the Agents promptly after their transmission to the Commission for
filing; (ii) subject to the foregoing clause (i), promptly to cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act and to
prepare, with respect to any Notes to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such Notes
in a form previously approved by such Agent and to file such Pricing
Supplement in accordance with Rule 424(b) under the Securities Act; and
(iii) promptly to file all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Notes. The Company will promptly advise each Agent (i) of the
filing of any amendment or supplement to the Basic Prospectus or any
amendment to the Registration Statement and of the effectiveness of any
such amendment to the Registration Statement, (ii) of the receipt of any
comments from the Commission with respect to the Registration Statement,
the Prospectus or the Prospectus Supplement, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, or the institution or threatening
of any proceeding for any such purpose, or of any request by the Commission
for any amendment or supplement of the Registration Statement or Prospectus
or for additional information relating thereto or to any document
incorporated by reference in the Prospectus; and (iv) of the receipt by the
Company of any notification with respect to any suspension of the
qualification of the Notes for offering or sale in any jurisdiction, or the
<PAGE> 11
11
initiation or threatening of any proceeding for any such purpose. The
Company agrees to use every reasonable effort to prevent the issuance of
any such stop order or of any order suspending any such qualification
and, if issued, to use every reasonable effort to obtain the lifting
thereof at the earliest possible moment. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act
of any document incorporated by reference in the Prospectus, no Agent
shall be obligated to solicit offers to purchase Notes so long as it is
not reasonably satisfied with such document.
(b) To use its reasonable best efforts to qualify the Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Agents shall reasonably request and to continue such qualification in
effect so long as reasonably required in connection with the distribution
of the Notes and to pay all fees and expenses (including fees and
disbursements of counsel to the Agents) reasonably incurred in connection
with such qualification and in connection with the determination of the
eligibility of the Notes for investment under the laws of such
jurisdictions as such Agent may reasonably designate; provided, however,
that the Company shall not be required to file a general consent to service
of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. The Company will file such
statements and reports as may be required by the laws of each jurisdiction
in which the Notes have been qualified as above provided.
(c) To furnish each Agent and counsel to the Agents, at the expense
of the Company, a signed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits and
documents incorporated by reference therein and, during the period
mentioned in paragraph (d) below, to furnish each Agent as many copies of
the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as such Agent may reasonably
request.
(d) If at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event shall occur as
a result of which, in the opinion of counsel for the Agents or counsel for
the Company, the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made not misleading, or, if in the
opinion of the Agents or the Company, it is necessary at any time to amend
or supplement the Prospectus, as then amended or supplemented, to comply
with law, to immediately notify the Agents by telephone (with confirmation
in writing) and request each Agent (i) in its capacity as agent of the
Company, to suspend solicitation of offers to purchase Notes from the
Company (and, if so notified, such Agent shall cease such solicitations and
cease using the Prospectus as soon as practicable, but in
<PAGE> 12
12
any event not later than one business day later); and (ii) to cease sales
of any Notes such Agent may then own as principal. If the Company shall
decide to amend or supplement the Registration Statement or the
Prospectus, as then amended or supplemented, it shall so advise each
Agent promptly by telephone (with confirmation in writing) and, at its
expense, shall prepare and cause to be filed promptly with the Commission
an amendment or supplement to the Registration Statement or the
Prospectus, as then amended or supplemented, reasonably satisfactory in
all respects to the Agents, that will correct such statement or omission
or effect such compliance and will supply such amended or supplemented
Prospectus to the Agents in such quantities as you may reasonably
request. Notwithstanding the foregoing, if there is incorrect information
in the written information furnished by the Agent or Agents to the Company
for use in the Prospectus and if such Prospectus is required to be
reprinted, then the expense of reprinting such Prospectus shall be borne,
severally, by the Agent or Agents who shall have furnished such incorrect
information. If any such amendment or supplement and any documents,
opinions, letters and certificates furnished to the Agents pursuant to
Sections 4(e), 4(i), 4(j) and 4(k) in connection with the preparation and
filing of such amendment or supplement are reasonably satisfactory in all
respects to the Agents, upon the filing with the Commission of such
amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, the Agents will resume the
solicitation of offers to purchase Notes hereunder. Notwithstanding any
other provision of this Section 4(d), until the distribution of any Notes
any Agent may own as principal has been completed or in the event such
Agent, in the opinion of its counsel, is otherwise required to deliver a
prospectus in respect of a transaction in the Notes, if any event
described in this Section 4(d) occurs the Company will, at its own
expense, promptly prepare and file with the Commission an amendment or
supplement, satisfactory in all respects to such Agent; that will correct
such statement or omission or effect such compliance, will supply such
amended or supplemented Prospectus to such Agent in such quantities as
such Agent may reasonably request and shall furnish to such Agent pursuant
to Sections 4(e), 4(i), 4(j) and 4(k) such documents, certificates,
opinions and letters as it may request in connection with the preparation
and filing of such amendment or supplement.
(e) To furnish to the Agents during the term of this Agreement such
relevant documents and certificates of officers of the Company relating to
the business, operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or supplements thereto, the
Indentures, the Notes, this Agreement, the Administrative Procedures, any
applicable Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from time to time
reasonably request and shall notify the Agents promptly in writing of any
downgrading, or on its receipt of any notice of (i) any intended or
potential downgrading or (ii) any review or possible change that does not
indicate an improvement in the rating accorded any of the securities of, or
guaranteed by, the
<PAGE> 13
13
Company by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(f) To make generally available to its security holders and to such
Agent as soon as practicable but not later than 90 days after the close of
the period covered thereby earnings statements which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering periods of at least twelve
months beginning in each case with the first day of the fiscal quarter of
the Company occurring after the "effective date" (as defined in Rule 158)
of the Registration Statement with respect to each sale of Notes.
(g) So long as any Notes are outstanding, to furnish to such Agent
copies of all reports or other communications (financial or other)
furnished to holders of the Notes and copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and all material reports or other communications (financial or
other) furnished to or filed with any national securities exchange on which
any class of securities of the Company is listed.
(h) That, from the date of any applicable Terms Agreement with such
Agent or other agreement by such Agent to purchase Notes as principal with
a maturity of one year or longer and continuing to and including the
business day following the related Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of or
guaranteed by the Company which are denominated in the same currency as
such Notes and with a maturity of one year or longer, without the prior
written consent of such Agent.
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered on the Notes or for a change
the Agents deem to be immaterial) and each time the Company sells Notes to
such Agent as principal pursuant to a Terms Agreement or other agreement
and such Terms Agreement or other agreement specified the delivery of an
opinion under this Section 4(i) as a condition to the purchase of Notes
pursuant to such Terms Agreement or other agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a written opinion
of Thompson, Hine and Flory, and/or the General Counsel or any Senior
Managing Counsel to the Company, dated the date of such amendment or
supplement, or the related Time of Delivery relating to such sale, as the
case may be, in form satisfactory to such Agent, of the same tenor as the
opinion referred to in Section 6(b) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the date of such opinion, or, in lieu of such opinion, counsel last
furnishing such an opinion, may furnish to the Agents a letter to the
effect that such Agent may rely on the opinion of such counsel which was
last
<PAGE> 14
14
furnished to such Agent to the same extent as though it were dated the
date of such letter (except that the statements in such last opinion
shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to date of delivery of such
letter).
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented to include or incorporate amended or
supplemented financial information and each time the Company sells Notes to
such Agent as principal pursuant to a Terms Agreement or other agreement
and such Terms Agreement or other agreement specifies the delivery of a
letter under this Section 4(j) as a condition to the purchase of Notes
pursuant to such Terms Agreement or other agreement, the Company shall
cause the independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment or supplement
or the related Time of Delivery relating to such sale, as the case may be,
of the same tenor as the letter referred to in Section 6(d) hereof but
modified to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter with such changes as may
be necessary to reflect such amended or supplemented financial information
included or incorporated by reference in the Registration Statement or the
Prospectus as amended or supplemented, provided, however, that, with
respect to any financial information or other matter, such letter may
reconfirm as true and correct at such date, as though made at and as of
such date, rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section 6(d)
hereof which was last furnished to such Agent.
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered on the Notes or for a change
the Agents deem to be immaterial), and each time the Company sells Notes to
such Agent as principal and the applicable Terms Agreement or other
agreement specifies the delivery of a certificate under this Section 4(k)
as a condition to the purchase of Notes pursuant to such Terms Agreement or
other agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement or the related Time
of Delivery relating to such sale, as the case may be, of the same tenor as
the certificates referred to in Section 6(e) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the date of delivery of such certificate or to the effect that the
statements contained in the certificate referred to in Section 6(e) hereof
which was last furnished to such Agent are true and correct at such date as
though made at and as of such date (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to such date).
<PAGE> 15
15
5. Costs and Expenses. The Company covenants and agrees with each
------------------
Agent that the Company will, whether or not any sale of Notes is consummated,
pay all costs and expenses incident to the performance of its obligations
hereunder and under any applicable Terms Agreement, including without limiting
the generality of the foregoing, all costs and expenses: (i) incident to the
preparation, issuance, execution, authentication and delivery of the Notes,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Notes under the laws of such jurisdictions as the Agents (or in connection
with any Terms Agreement, the applicable Agent) may designate (including fees of
counsel for the Agents (or such Agent) and their disbursements), (iv) in
connection with the listing of the Notes on any stock exchange, (v) related to
any filing with the National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, any Blue Sky Memoranda and any
Legal Investment Survey and the furnishing to the Agents and dealers of copies
of the Registration Statement and the Prospectus, including mailing and
shipping, as herein provided, (vii) payable to rating agencies in connection
with the rating of the Notes, (viii) the reasonable fees and disbursements of
counsel for the Agents incurred in connection with the offering and sale of
the Notes, including any opinions to be rendered by such counsel hereunder and
(ix) any advertising and out-of-pocket expenses incurred by the Agents.
6. Conditions. The obligation of any Agent, as agent of the
----------
Company, at any time ("Solicitation Time") to solicit offers to purchase the
Notes, the obligation of any Agent to purchase Notes as principal pursuant to
any Terms Agreement or otherwise, and the obligation of any other purchaser to
purchase Notes shall in each case be subject (1) to the condition that all
representations and warranties of the Company herein and all statements of
officers of the Company made in any certificate furnished pursuant to the
provisions hereof are accurate (i) in the case of an Agent's obligation to
solicit offers to purchase Notes, at and as of such Solicitation Time and (ii)
in the case of any Agent's or any other purchaser's obligation to purchase
Notes, at and as of the time the Company accepts the offer to purchase such
Notes and, as the case may be, at and as of the related Time of Delivery or time
of purchase; (2) to the condition that at or prior to such Solicitation Time,
time of acceptance, Time of Delivery or time of purchase, as the case may be,
the Company shall have complied with all its agreements and all conditions on
its part to be performed or satisfied hereunder; and (3) to the following
additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery
or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented (including, if
applicable, the Pricing Supplement) with respect to such Notes shall
have been filed with the Commission pursuant to Rule 424(b) under the
Securities Act
<PAGE> 16
16
within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall
any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of or
guaranteed by the Company by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have occurred any change or any
development in or affecting particularly the business or properties of
the Company or its subsidiaries which, in the judgment of the
applicable Agent, materially impairs the investment quality of the
Notes; and
(iv) (A) trading generally shall not have been suspended on or
by, as the case may be, any of the New York Stock Exchange or the
American Stock Exchange, minimum or maximum prices for trading shall
not have been fixed, or maximum ranges for prices for securities shall
not have been required, on the New York Stock Exchange or the American
Stock Exchange, by such Exchange or by order of the Commission or any
other governmental authority having jurisdiction, (B) trading in any
securities of the Company shall not have been suspended by the
Commission or a national securities exchange or in any over-the-
counter market, (C) a general moratorium on commercial banking
activities in New York shall not have been declared by either Federal
or New York State authorities, or (D) there shall not have occurred
any outbreak or escalation of hostilities in which the United States
is involved, a declaration of war by Congress, any other substantial
national or international calamity or any other event or occurrence of
a similar character if, in the judgment of such Agent or Agents or of
such other purchaser, the effect of any such outbreak, escalation,
declaration, calamity or other event or occurrence makes it
impracticable or inadvisable to market the Notes on the terms and in
the manner contemplated in the Prospectus as amended or supplemented
at the Solicitation Time or at the time such offer to purchase was
made. Promptly after the determination by any such Agent or other
purchaser that it is impractical or inadvisable to market the Notes,
such Agent or other purchaser shall notify the Company of such
determination in writing; but the omission so to notify the Company
shall not act to modify the rights of the Agent or other purchaser
under this Section 6(a)(iv)(A).
(b) On the Commencement Date, and in the case of a purchase of Notes
by an Agent as principal pursuant to a Terms Agreement or otherwise, if
called for by
<PAGE> 17
17
the applicable Terms Agreement or other agreement, at the corresponding
Time of Delivery, the General Counsel or Senior Managing Counsel to the
Company and/or Thompson, Hine and Flory, special tax counsel to the
Company, as indicated in the applicable Prospectus Supplement (it being
understood that any opinion with respect to Key Bank of New York, Key Bank
of Washington, Key Bank of Oregon, Key Bank of Maine, Key Bank of Idaho,
Key Bank of Utah, Society Bank, Michigan, Key Bank of Alaska or Key Bank
of Colorado may be delivered by the General Counsel or Senior Managing
Counsel to the Company) shall have furnished to the relevant Agent or
Agents their written opinion, dated the Commencement Date or Time of
Delivery, as the case may be, in form and substance satisfactory to such
Agent or Agents, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of Ohio and is duly
registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended; each of Society National Bank and Society
National Bank, Indiana (the "National Banks") is a duly organized and
validly existing national banking association under the laws of the
United States and continues to hold a valid certificate to do
business as such; each of Key Bank of New York, Key Bank of
Washington, Key Bank of Oregon, Key Bank of Maine, Key Bank of Idaho,
Key Bank of Utah, Society Bank, Michigan, Key Bank of Alaska and Key
Bank of Colorado (the "State Banks") is a duly organized and validly
existing state chartered banking association under the laws of the
States of New York, Washington, Oregon, Maine, Idaho, Utah, Michigan,
Alaska and Colorado, respectively, and each continues to hold a valid
certificate to do business as such; each of the Company, the National
Banks and the State Banks has full corporate power and authority to
conduct its business as described in the Registration Statement and
Prospectus and is duly qualified to do business in each jurisdiction
in which it owns or leases real property, except where the failure to
be so qualified, considering all such cases in the aggregate, does
not involve a material risk to the business, properties, financial
position or results of operations of the Company and its subsidiaries
taken as a whole; and all of the outstanding shares of capital stock
of each of the National Banks and the State Banks have been duly
authorized and validly issued, are fully paid and non-assessable
(exceptions to be specified) and (except as otherwise stated in the
Registration Statement) are owned beneficially by the Company subject
to no security interest, other encumbrance or adverse claim.
(ii) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
(iii) The Notes conform in all material respects to the
description thereof contained or incorporated by reference in the
Prospectus and such description conforms in all material respects to
the rights set forth in the instruments defining the same.
(iv) The Notes have been duly authorized and, when executed,
authenticated and delivered in accordance with the terms of the
applicable
<PAGE> 18
18
Indenture and issued to and paid for by any purchaser of Notes sold
through an Agent as agent or any Agent as principal pursuant to any
Terms Agreement or other agreement, will be entitled to the benefits
of such applicable Indenture and will constitute valid and legally
binding obligations of the Company enforceable in accordance with
their terms subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company enforceable in accordance with its terms
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture Act.
(vi) The issue and sale of the Notes and the performance by the
Company of its obligations under the Notes, the Indenture, this
Agreement and any applicable Terms Agreement or other agreement
pursuant to which an Agent purchases Notes as principal and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute,
rule or regulation, any agreement or instrument known to such counsel
to which the Company is a party or by which it is bound, the Company's
Articles of Incorporation or Regulations, or any order known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company.
(vii) No consent, approval, authorization, order, registration
or qualification of or filing with any court or governmental agency or
body is required for the issue and sale of the Notes or the
consummation of the other transactions contemplated by this Agreement,
any applicable Terms Agreement or other agreement pursuant to which an
Agent purchases Notes as principal, or the Indenture, except such
consents, approvals, authorizations, registrations or qualifications
as have been obtained under the Securities Act and the Trust Indenture
Act and as may be required under state securities or Blue Sky laws in
connection with offers and sales of the Notes from the Company and
with purchases of Notes.
(viii) The Registration Statement has become effective under the
Securities Act; any required amendment or supplement to the Prospectus
has been filed as required by Section 4(a) hereof; and to the best
knowledge of such counsel no stop order suspending the effectiveness
of the Registration
<PAGE> 19
19
Statement has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission.
(ix) Such counsel is of the opinion ascribed to it in the
Prospectus under the caption "United States Federal Taxation", if any.
(x) Such counsel (A) is of the opinion that the Registration
Statement and the Prospectus each as amended or supplemented on the
Commencement Date or the applicable Time of Delivery (except for the
financial statements and other financial and statistical data included
therein or omitted therefrom and the Statement of Eligibility (Form T-
1) under the Trust Indenture Act of the Trustee as to which such
counsel need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the Exchange
Act and the respective rules thereunder, (B) has no reason to believe
that (except for the financial statements or other financial and
statistical data included therein or omitted therefrom and the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of
the Trustee as to which such counsel need express no belief) each part
of the Registration Statement, as amended (including the documents
incorporated by reference therein), filed with the Commission pursuant
to the Securities Act relating to the Notes, when such part became
effective and, as of the date such opinion is delivered, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (C) has no reason to believe that (except for
the financial statements and other financial and statistical data
included therein or omitted therefrom and the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee as to which
such counsel need express no belief) the Prospectus, as amended or
supplemented, if applicable, as of the date such opinion is delivered
contains any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading and (D) does not know of any amendment to the Registration
Statement required to be filed which is not filed as required;
provided that in the case of an opinion delivered on the Commencement
Date or pursuant to Section 4(i) (other than in connection with a
Terms Agreement), the opinion and belief set forth in clauses (A) and
(C) above shall be deemed not to cover information concerning an
offering of particular Notes to the extent such information will be
set forth in a supplement to the Basic Prospectus.
Such opinion or opinions shall be to such further effect with respect
to other legal matters relating to this Agreement, and the sale of the
Notes, pursuant to this Agreement as counsel for the Agents may reasonably
request. Such opinion or opinions shall be limited to New York, Ohio,
Washington and federal law and, if
<PAGE> 20
20
applicable, the law of the state of incorporation of any other Significant
Subsidiary. In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions in which such counsel is not
qualified and the federal law of the United States, upon opinions of other
counsel, who shall be counsel satisfactory to counsel for the Agents, in
which case the opinion shall state that they believe you and they are
entitled to so rely. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company, the National Banks
and the State Banks and the Significant Subsidiaries and certificates of
public officials.
In rendering their opinion, such counsel may rely upon the opinion of
Shearman & Sterling referred to below as to any matters governed by New
York law covered therein.
(c) On the Commencement Date, and in the case of a purchase of Notes
by an Agent as principal pursuant to a Terms Agreement or otherwise, if
called for by the applicable Terms Agreement or other agreement, at the
corresponding Time of Delivery, Shearman & Sterling, counsel to the Agents,
shall have furnished to the relevant Agent or Agents such opinion or
opinions, dated the Commencement Date or Time of Delivery, as the case may
be, to the effect that the opinion delivered pursuant to Section 6(b)
appears on its face to be appropriately responsive to the requirements of
this Agreement and with respect to the incorporation of the Company, the
validity of the Indenture, the securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as such
Agent or Agents may reasonably request, and in each case such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters. In rendering their opinion, such
counsel may rely upon the opinion rendered on behalf of the Company
referred to above as to all matters of Ohio law.
(d) On the Commencement Date, and in the case of a purchase of Notes
by an Agent as principal pursuant to a Terms Agreement or otherwise, if
called for by the applicable Terms Agreement or other agreement, at the
corresponding Time of Delivery, the Company's independent certified public
accountants who have certified the financial statements of the Company and
its subsidiaries included or incorporated by reference in the Registration
Statement and Prospectus, as then amended or supplemented, shall have
furnished to the relevant Agent or Agents a letter, dated the Commencement
Date or Time of Delivery, as the case may be to the effect set forth in
Annex I hereto.
(e) On the Commencement Date, and in the case of a purchase of Notes
by an Agent as principal pursuant to a Terms Agreement or otherwise, if
called for by the applicable Terms Agreement or other agreement, at the
corresponding Time of Delivery, the relevant Agent or Agents shall have
received from the Company a certificate or certificates signed by the
Chairman of the Board, the President or an
<PAGE> 21
21
Executive Vice President, and by the principal financial or accounting
officer, dated the Commencement Date or Time of Delivery, as the case may
be, to the effect that, to the best of their knowledge based upon
reasonable investigation (1) the representations and warranties of the
Company contained herein are true and correct on and as of the Commencement
Date or Time of Delivery, as the case may be, as if made on and as of such
date, and the Company has complied with all agreements and all conditions
on its part to be performed or satisfied hereunder or under the applicable
Terms Agreement or other agreement at or prior to the Commencement Date or
Time of Delivery, as the case may be, and (2) no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or is threatened by the
Commission.
(f) On the Commencement Date and at each Time of Delivery, the
Company shall have furnished to the relevant Agent or Agents such further
certificates and documents as such Agent or Agents may reasonably request.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form
and substance to the relevant Agent or Agents. The Company will furnish
the relevant Agent or Agents with such conformed copies of such opinions,
certificates, letters and other documents as the relevant Agent or Agents
shall reasonably request.
7. Indemnification and Contribution. (a) The Company will
--------------------------------
indemnify and hold harmless each Agent against any losses, claims, damages or
liabilities, joint or several, to which such Agent may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
part of the Registration Statement when such part became effective, any
preliminary prospectus, the Prospectus or any amendment or supplement thereto,
or any other prospectus with respect to the Notes, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Agent for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that (i) the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by you, or by any Agent through you, specifically for
use therein and (ii) such indemnity with respect to any Preliminary Prospectus
shall not inure to the benefit of any Agent (or any person controlling such
Agent) to the extent that any such loss, claim, damage or liability of such
Agent results from the fact that such Agent sold Notes to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case
<PAGE> 22
22
where such delivery is required by the Securities Act if the Company has
previously furnished copies thereof in sufficient quantity to such Agent and the
loss, claim, damage or liability of such Agent results from an untrue statement
or omission of a material fact contained in the Preliminary Prospectus which was
corrected in the Prospectus (excluding documents incorporated by reference) or
in the Prospectus as then amended or supplemented (excluding documents
incorporated by reference).
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any part of the Registration Statement when such part became
effective, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or any other prospectus relating to the Notes, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made therein in reliance upon and in conformity with written
information furnished to the Company by you, or by such Agent through you,
specifically for use therein, and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending against any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party provided,
however, that, if the defendants in any such action (including any impleaded
parties) include both the indemnified party and the indemnifying party and
representations of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them, the indemnified party
or parties shall have the right to select separate counsel to participate in the
defense of such action on behalf of such indemnified party or parties (and the
reasonable fees and expenses of one such separate counsel shall be paid by the
indemnifying party). No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party.
<PAGE> 23
23
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities,
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Agents on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Agents on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Agents on the other shall be deemed to be in the same proportion as the
total proceeds from the offering of the Notes (before deducting expenses)
received by the Company bear to the total compensation or profit (before
deducting expenses) received or realized by the Agents from the purchase and
resale, or underwriting, of the Notes. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Agents and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and the
Agents agree that it would not be just and equitable if contributions pursuant
to this subsection (d) were to be determined by pro rata allocation (even if the
Agents were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the first sentence of this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Agent shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Agents'
obligations in this subsection (d) to contribute shall be several in proportion
to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Securities Act; and the obligations of the
Agents under this Section 7 shall be
<PAGE> 24
24
in addition to any liability that the respective Agents may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company (including any person who, with his consent, is named in the
Registration Statement as about to become a director of the Company), to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
8. Termination. (a) This Agreement may be terminated at any time
-----------
(i) by the Company with respect to any or all of the Agents or (ii) by any Agent
with respect to itself only, in each case upon the giving of written notice of
such termination to each other party hereto. Any Terms Agreement shall be
subject to termination in the discretion of the Agent or Agents that are parties
thereto by notice given to the Company prior to the payment for any Note to be
purchased thereunder, if at or prior to such time any of the conditions
specified in Section 6(a) hereof shall not have been satisfied. The termination
of this Agreement shall not require termination of any agreement by an Agent to
purchase Notes as principal (whether pursuant to a Terms Agreement or otherwise)
and the termination of such an agreement shall not require termination of this
Agreement. In the event this Agreement is terminated with respect to any Agent,
(x) this Agreement shall remain in full force and effect with respect to any
Agent as to which such termination has not occurred, (y) this Agreement shall
remain in full force and effect with respect to the rights and obligations of
any party which have previously accrued or which relate to Notes which are
already issued, agreed to be issued or the subject of a pending offer at the
time of such termination and (z) in any event, the provisions of the fourth
paragraph of Section 2(a), Section 2(c), the last sentence of Section 4(d) and
Sections 4(f), 4(g), 5, 7, 9, 10, 12 and 15 shall survive; provided that if at
the time of termination an offer to purchase Notes has been accepted by the
Company but the time of delivery to the purchaser or its agent of such Notes has
not yet occurred, the provisions of Sections 2(b), 2(d), 4(a) through 4(e), 4(h)
through 4(k) and 6 shall also survive. If any Terms Agreement is terminated,
the provisions of the last sentence of Section 4(d) and Sections 2(b), 2(d),
4(a), 4(b), 4(e), 4(g) through 4(k), 5, 6, 7, 9, 10, 12 and 15 (which shall have
been incorporated by reference in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be terminated by
an Agent or Agents because of any failure or refusal on the part of the Company
to comply with the terms or to fulfill any of the conditions of this Agreement
or any Terms Agreement or if for any reason the Company shall be unable to
perform its obligations under this Agreement or any Terms Agreement or any
condition of any Agent's obligations cannot be fulfilled, the Company agrees to
reimburse each Agent or such Agents as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by such Agent or Agents
in connection with this Agreement or the offering of Notes.
<PAGE> 25
25
9. Position of the Agents. Each Agent, in soliciting offers to
----------------------
purchase Notes from the Company and in performing the other obligations of such
Agent hereunder (other than in respect of any purchase by an Agent as principal,
pursuant to a Terms Agreement or otherwise), is acting solely as agent for the
Company and not as principal and does not assume any obligation towards or
relationship of agency or trust with any purchaser of Notes. Each Agent will
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes from the Company was solicited by such
Agent and has been accepted by the Company, but such Agent shall not have any
liability to the Company in the event such purchase is not consummated for any
reason. If the Company shall default on its obligation to deliver Notes to a
purchaser whose offer it has accepted, the Company shall (i) hold the relevant
Agent harmless against any loss, claim, damage or liability arising from or as a
result of such default by the Company and (ii) notwithstanding such default, pay
to the Agent that solicited such offer any commission to which it would be
entitled in connection with such sale.
10. Representations and Agreements to Survive. The respective
-----------------------------------------
indemnities and contribution agreements, representations, warranties and
agreements of the Company herein or certificates of its officers and the Agents
set forth in or made pursuant to this Agreement or any agreement by an Agent to
purchase Notes as principal shall remain in full force and effect regardless of
any termination of this Agreement or any such agreement, any investigation made
by or on behalf of any Agent or any controlling person of any Agent, or the
Company, or any officer or director or any controlling person of the Company,
and shall survive each delivery of and payment for any of the Notes.
11. Notices. Except as otherwise specifically provided herein or in
-------
the Administrative Procedures, all statements, requests, notices and advices
hereunder shall be in writing, and effective only on receipt, and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid) or
by telecopier. Communications to the Agents will be sent, in the case of
Salomon Brothers Inc, Seven World Trade Center, New York, New York 10048,
Attention: Medium Term Note Department (Facsimile Number : 212-783-2274), in
the case of CS First Boston Corporation, to Park Avenue Plaza, 55 East 52nd
Street, New York, New York 10005, Attention: Robert W. Mitchell, Short and
Medium-Term Finance Department (Facsimile Number: 212-318-1498), in the case
of Goldman, Sachs & Co., to 85 Broad Street, New York, New York 10004,
Attention: Credit Department (Credit Control-Medium Term Notes) (Facsimile
Number: 212-357-8680), in the case of J.P. Morgan Securities Inc., to 60 Wall
Street, 3rd Floor, New York, New York 10260, Attention: Medium Term Note Desk
(Facsimile Number: 212-648-5909), and, if sent to the Company, to it at 127
Public Square, Cleveland, Ohio 44114, Attention: Secretary and General Counsel
(Telephone Number: (216) 689-5128;
- ---------
Telecopier Number: (216) 689-5681) with a Copy to: the Senior Managing
---- --
Counsel -- Securities.
<PAGE> 26
26
12. Successors. This Agreement and any Terms Agreement shall be
----------
binding upon, and inure solely to the benefit of, each Agent and the Company,
and their respective successors and the officers, directors and controlling
persons referred to in Section 7 and (to the extent expressly provided in
Section 6) the purchasers of Notes, and no other person shall acquire or have
any right or obligation under or by virtue of this Agreement or any Terms
Agreement.
13. Amendments. This Agreement may be amended or supplemented if,
----------
but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, on 7
days prior written notice to the Agents but without the consent of any Agent,
amend this Agreement to add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such firm shall become an
Agent hereunder on the same terms and conditions as the other Agents that are
parties hereto. The Agents shall sign any amendment or supplement giving effect
to the addition of any such firm as an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this Agreement and
------------
any Terms Agreement. As used herein, the term "business day" shall mean any day
which is not a Saturday or Sunday or legal holiday or a day on which banks in
New York City are generally required or authorized by law or executive order to
close.
15. Applicable Law. This Agreement and any Terms Agreement shall be
--------------
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
16. Counterparts. This Agreement and any Terms Agreement may be
------------
signed in counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
17. Headings. The headings of the sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
<PAGE> 27
27
If the foregoing is in accordance with your understanding, please sign
and return to us five counter-parts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
KeyCorp
By: /s/ Carter B. Chase
---------------------------
Accepted in New York, New York,
as of the date first above written:
Salomon Brothers Inc
By:
-------------------------
Name:
Title:
- ----------------------------
CS First Boston Corporation
By:
-------------------------
Name:
Title:
Goldman, Sachs & Co.
<PAGE> 28
28
J.P. Morgan Securities Inc.
By:
-------------------------
Name:
Title:
<PAGE> 29
Exhibit A
KEYCORP
SENIOR MEDIUM-TERM NOTES, SERIES C
SUBORDINATED MEDIUM-TERM NOTES, SERIES B
TERMS AGREEMENT
________, 199___
KeyCorp
127 Public Square
Cleveland, Ohio 44114
Attention: ______________
Re: Distribution Agreement dated ________, 1995 (the "Distribution
Agreement")
The undersigned agrees to purchase your Medium-Term Notes having the
following terms:
Title: ________________________________
Specified Currency: __________________
Principal Amount: _________________________________
Original Issue Date: _________________
Settlement Date, Time and Place: _____________________
Stated Maturity: ______________
Purchase Price: _____% of Principal Amount, plus accrued interest,
if any, from Settlement Date
Price to Public: _____% of Principal Amount, plus accrued interest,
if any, from Settlement Date
Redemption:
Initial Redemption Date (Dates): , commencing
Additional Redemption Dates:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
<PAGE> 30
2
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity
[(For Fixed Rate Notes)]
Interest Rate: ____________________
Applicability of modified payment upon acceleration:
If yes, state issue price:
Amortization schedule:
[(For Floating Rate Notes)]/*/
Initial Interest Rate: ___________________
Base Rate (CD, Commercial Paper, Federal Funds, LIBOR,
Prime Treasury, CMT, 11th District Cost
of Funds, ________): ________________
Index Maturity (30, 60, 90 days, 6 months, 1 year,
other): ____________________
Interest Reset Period (daily, weekly, monthly, quarterly,
semiannually, annually): ______________________
Spread: _____________ points (+/-)
Spread Multiplier: _________%
Maximum Interest Rate: ____________%
Minimum Interest Rate: ____________%
Initial Interest Reset Date: ____________
Interest Reset Dates: ________________
- -------------------------
/*/ See Prospectus Supplement dated ___________ for explanation of terms.
<PAGE> 31
3
Interest Determination Dates: _____________
Interest Payment Dates: ____________
Calculation Agent:
Other terms of Securities:
Provisions relating to underwriter
default, if any:
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11,
12 and 15 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination in our absolute discretion on
the terms incorporated by reference herein. If this Agreement is so terminated,
the provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purposes of this Agreement.
[The certificate referred to in Section 4(k) of the Distribution
Agreement, the opinion referred to in Section 4(i) of the Distribution Agreement
and the accountants' letter referred to in Section 4(j) of the Distribution
Agreement will be required.]
[Agent]
By: ______________________
(Title)
Accepted:
KEYCORP
By: _______________________
(Title)
<PAGE> 32
EXHIBIT B
KEYCORP
SENIOR MEDIUM-TERM NOTES, SERIES C
SUBORDINATED MEDIUM-TERM NOTES, SERIES B
ADMINISTRATIVE PROCEDURES
The Senior Medium-Term Notes, Series C (the "Notes") and the
Subordinated Medium-Term Notes, Series B, are to be offered on a continuous
basis by KeyCorp (the "Company"). Each of Salomon Brothers Inc, CS First
Boston Corporation, Goldman Sachs & Co., J.P. Morgan Securities Inc. (each an
"Agent" and collectively, the "Agents") has agreed to solicit offers to
purchase the Notes. The Notes are being sold pursuant to a Distribution
Agreement dated ______________, 1995 (the "Agreement") between the Company and
the Agents. In the Agreement, each Agent has agreed to use reasonable efforts
to solicit purchases of the Notes. Each Agent, as principal, may purchase
Notes for its own account and, if such Agent so elects, the Company and such
Agent will enter into a Terms Agreement, as contemplated by the Agreement. The
Company may also solicit offers to purchase and may sell Notes directly on its
own behalf to investors (other than broker-dealers).
The Notes will be issued under an Indenture, dated as of June 10, 1994
(as supplemented or amended from time to time, the "Senior Indenture") between
the Company and Bankers Trust Company, as trustee (the "Senior Trustee"), with
respect to unsecured and unsubordinated Notes, or the Indenture, dated as of
June 10, 1994 (as supplemented or amended from time to time, the "Subordinated
Indenture"), between the Company and Bankers Trust Company, as trustee (the
"Subordinated Trustee"), with respect to unsecured and subordinated Notes. The
Senior Indenture and Subordinated Indenture are herein collectively referred to
as the "Indenture" and the Senior Trustee and Subordinated Trustee are herein
collectively referred to as the "Trustee." Wherever the terms "Indenture" and
"Trustee" are used with respect to a specific issuance of Notes they shall mean
the Senior Indenture and Senior Trustee, in the case of an issuance of unsecured
and unsubordinated Notes, and the Subordinated Indenture and Subordinated
Trustee, in the case of an issuance of unsecured and subordinated Notes.
Society National Bank, Cleveland, Ohio, a national banking association
("Society") will be the Paying Agent, Registrar, Authenticating Agent and the
Calculation Agent for the Notes, and will perform the duties specified herein.
Notes will bear interest at a fixed rate (the "Fixed Rate Notes"), which may be
zero in the case of certain original issue discount notes (the "OID Notes"), or
at floating rates (the "Floating Rate Notes"). Fixed Rate Notes may pay a level
amount in respect of both interest and principal amortized over the life of the
Notes ("Amortizing Notes"). Each Note will be represented by either a Global
Security (as defined below) delivered to Society, as agent for The Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained
<PAGE> 33
2
by DTC (a "Book-Entry Note") or a certificate delivered to the holder thereof or
a person designated by such holder (a "Certificated Note"). Except in limited
circumstances, an owner of a Book-Entry Note will not be entitled to receive a
Certificated Note.
Unless otherwise indicated in the applicable Pricing Supplement, the
Notes will be denominated in U.S. dollars and payments of principal of and any
premium and interest on the Notes will be made in U.S. dollars in the manner
indicated in the Prospectus and the Prospectus Supplement. Notes denominated in
one or more currencies or currency units other than U.S. Dollars are referred to
herein as "Foreign Currency Notes". For special provisions relating to Foreign
Currency Notes, see the sections entitled "Special Provisions Relating to
Foreign Currency Notes" in the Prospectus Supplement and "Foreign Currency
Risks" in the Prospectus. Specific information concerning the foreign currency
or currency unit in which a particular Foreign Currency Note is denominated,
including historical exchange rates and a description of the currency and any
exchange controls, shall be contained in a Pricing Supplement to the Prospectus
Supplement reflecting the terms of such Note.
The Company will advise each Agent in writing of those persons
representing the Company with whom such Agent is to communicate regarding offers
to purchase Securities and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Society will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and Society to DTC, dated as of the date hereof (the "Letter of
Representation"), and a Medium-Term Note Certificate Agreement between Society
and DTC, dated as of April 24, 1991 and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement" below)
for one or more Book-Entry Notes, the Company will issue a single
global security in fully registered form without coupons (a
"Global Security") representing up to U.S. $150,000,000 principal
amount of all such Notes that have the same Maturity Date,
redemption or repayment provisions, Interest Payment Dates,
Original Issue Date, original issue discount provisions (if any),
and, in the case of Fixed Rate Notes, Interest Rate, modified
payment upon acceleration (if any), amortization schedule (if
any) or, in the case of Floating Rate Notes, Initial Interest
Rate, Interest Payment Dates, Interest Payment Period,
<PAGE> 34
3
Calculation Agent, Base Rate, Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any) and Maximum Interest Rate
(if any) and, in each case, any other relevant terms
(collectively "Terms"). Each Global Security will be dated and
issued as of the date of its authentication. Each Global
Security will bear an "Interest Accrual Date," which will be (i)
with respect to an original Global Security (or any portion
thereof), its original issuance date and (ii) with respect to any
Global Security (or any portion thereof) issued subsequently upon
exchange of a Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest Payment Date to
which interest has been paid or duly provided for on the
predecessor Global Security or Securities (or if no such payment
or provision has been made, the original issuance date of the
predecessor Global Security), regardless of the date of
authentication of such subsequently issued Global Security.
Book-Entry Notes may currently be denominated and payable only in
U.S. dollars. No Global Security will represent (i) both Fixed
Rate and Floating Rate Book-Entry Notes or (ii) any Certificated
Note.
Identification The Company has arranged with the CUSIP Service Bureau of
Numbers: Standard & Poor's Ratings Group (the "CUSIP Service Bureau") for
the reservation of a series of approximately 900 CUSIP numbers
(including tranche numbers) for assignment to the Global
Securities representing the Book-Entry Notes. The Company has
obtained from the CUSIP Service Bureau a written list of such
series of reserved CUSIP numbers and has delivered to the
Trustee, Registrar and DTC the written list of 900 CUSIP numbers
of such series. The Company will assign CUSIP numbers to Global
Securities as described below under Settlement Procedure "B".
DTC will notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Company has assigned to Global Securities.
At any time when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, Society shall so advise
the Company and, if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such additional
CUSIP numbers, the Company shall deliver a list of such
additional CUSIP numbers to the Trustee, Registrar and DTC.
Registration: Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the security register maintained
under the Indenture. The beneficial owner of a Book-Entry Note
(or one or more indirect participants in DTC designated by such
owner) will designate
<PAGE> 35
4
one or more participants in DTC with respect to such Note (the
"Participants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC and DTC
will record in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with respect to
such beneficial owner in such Note in the account of such
Participants. The ownership interest of such beneficial owner in
such Note will be recorded through the records of such
Participants or through the separate records of such Participants
and one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by book
entries made by DTC and, in turn, by Participants (and in certain
cases, one or more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such Note.
Exchanges: The Registrar may deliver to DTC, the Trustee and the CUSIP
Service Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more Outstanding
Global Securities that represent Book-Entry Notes having the same
Terms and for which interest has been paid to the same date, (ii)
a date, occurring at least thirty days after such written notice
is delivered and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single replacement Global
Security and (iii) a new CUSIP number to be assigned to such
replacement Global Security. Upon receipt of such a notice, DTC
will send to its Participants (including the Trustee) a written
reorganization notice to the effect that such exchange will occur
on such date. Prior to the specified exchange date, the
Registrar will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the new CUSIP number
and stating that, as of such exchange date, the CUSIP numbers of
the Global Securities to be exchanged will no longer be valid.
On the specified exchange date, the Registrar will exchange such
Global Securities for a single Global Security bearing the new
CUSIP number and a new Interest Accrual Date, and the CUSIP
numbers of the exchanged Global Securities will, in accordance
with CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed $150,000,000 in
aggregate principal amount, one Global Security will be
authenticated and issued to represent each $150,000,000,
principal amount of the exchanged Global Security and an
additional Global Security will be authenticated
<PAGE> 36
5
and issued to represent any remaining principal amount of such
Global Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine months or more
from date of issue.
Notice of The Company will give notice to Society and to the
Redemption and Trustee and Society as the Paying Agent will give
Repayment notice to DTC prior to each Redemption Date or
Dates: Repayment Date (as specified in the Note), if any, at the time
and in the manner set forth in the Letter of Representation.
Such notice shall be sent to DTC by a secure means (e.g., legible
----
telecopy, registered or certified mail, overnight delivery) in a
timely manner designed to assure that such notice is in DTC's
possession no later than two business days before the Publication
Date. Society shall forward such notice either in a separate
secure transmission for each CUSIP number or in a secure
transmission for multiple CUSIP numbers (if applicable) which
includes a manifest or list of each CUSIP number submitted in
that transmission. Society shall verify the use of such means
and the timeliness of such notice. The Publication Date shall
not be less than 30 days nor more than 60 days prior to the
redemption date.
With respect to repayment of Notes at the option of the holder,
Society shall send notice to DTC and to the Trustee on the day
which is the earlier of 60 days prior to the purchase date or 5
days prior to the commencement of the tender exercise period, and
such notice shall specify the CUSIP number of such issue, the
start date and end date of the tender exercise period, the
repayment price, and the purchase date. Society shall send such
notice to DTC and to the Trustee with respect to an issue of
Notes with a "one time only" repayment option when such option
arises; in the case of an issue of Notes that are repayable on a
regular quarterly, semi-annual, annual, or less frequent cycle,
Society shall send such notice with respect to each repayment
option as it arises, or shall send such notice with respect to
all repayment options when the first such option arises; and, for
an issue of Notes that are repayable on a regular monthly cycle,
Society shall send such notice with respect to the first
repayment option and annually thereafter; provided, however,
Society shall in all cases promptly send notice of any change in
the issue's operational terms affecting the repayment options
(e.g., an upcoming mandatory tender), when known. Society
-----
recognizes that DTC will use its Repayment Option Procedures, a
copy of which previously has been furnished to Society, to
process tenders of
<PAGE> 37
6
the Notes. It is understood that under the Repayment Option
Procedures DTC will receive daily instructions from its
Participants to tender Notes for purchase. On the purchase date,
after paying DTC for tendered Notes, Society shall cancel the
tendered Notes, notify DTC to reduce the principal amount of the
issue of the Notes by the aggregate principal amount of the
tendered Notes and shall reduce the principal amount of the
Global Security evidencing the tendered Notes accordingly.
Denominations: Book-Entry Notes will be issued in principal amounts of $100,000
or an integral multiple of $1,000 in excess thereof. Global
Securities will be denominated in principal amounts not in excess
of $150,000,000. If one or more Book-Entry Notes having an
aggregate principal amount in excess of $150,000,000 would, but
for the preceding sentence, be represented by a single Global
Security, then one Global Security will be issued to represent
each $150,000,000 principal amount of such Book-Entry Note or
Notes and an additional Global Security will be issued to
represent any remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be assigned the
same CUSIP number.
Interest: General. Interest on each Book-Entry Note will accrue from the
-------
Interest Accrual Date of the Global Security representing such
Note. Unless otherwise specified therein, each payment of
interest on a Book-Entry Note will include interest accrued to
but excluding the Interest Payment Date. Interest payable at the
maturity or upon redemption or repayment of a Book-Entry Note
will be payable to the person to whom the principal of such Note
is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message described
under Settlement Procedure "C" below in order to include the
amount of any interest payable and certain other information
regarding the related Global Security in the appropriate weekly
bond report published by Standard & Poor's Corporation.
Record Dates. The Record Date with respect to any Interest
------------
Payment Date shall be the date fifteen calendar days immediately
preceding such Interest Payment Date.
Fixed Rate Book-Entry Notes. Unless otherwise specified pursuant
---------------------------
to Settlement Procedure "A" below, interest payments on Fixed
Rate Book-Entry Notes, other than Amortizing Notes, will be made
<PAGE> 38
7
semiannually on June 1 and December 1 of each year, and at
maturity or upon any earlier redemption or repayment and
principal and interest payments on Book-Entry Amortizing Notes
will be made semiannually on June 1 and December 1 of each year
or quarterly on March 1, June 1, September 1 and December 1 of
each year, and at maturity (or any redemption or repayment date);
provided, however, that in the case of a Fixed Rate Book-Entry
-------- -------
Note issued between a Record Date and an Interest Payment Date or
on an Interest Payment Date, the first interest payment will be
made on the Interest Payment Date following the next succeeding
Record Date. If any Interest Payment Date for a Fixed Rate Book-
Entry Note is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and no interest
shall accrue on such payment for the period from and after such
Interest Payment Date.
Floating Rate Book-Entry Notes. Interest payments will be made
------------------------------
on Floating Rate Book-Entry Notes monthly, quarterly,
semiannually or annually. Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest will be payable, in the
case of Floating Rate Book-Entry Notes with a daily, weekly or
monthly Interest Reset Date other than the 11th District Cost
of Funds Rate Notes, on the third Wednesday of each month or on
the third Wednesday of March, June, September and December or,
in the case of 11th District Cost of Funds Rate Notes, all of
which reset monthly, the first calendar day of each month, as
specified pursuant to Settlement Procedure "A" below; in the
case of Floating Rate Book-Entry Notes with a quarterly Interest
Reset Date, on the third Wednesday of March, June, September and
December of each year; in the case of Floating Rate Book-Entry
Notes with a semiannual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to Settlement
Procedure "A" below; and in the case of Floating Rate Book-Entry
Notes with an annual Interest Reset Date, on the third Wednesday
of the month specified pursuant to Settlement Procedure "A"
below and, in each case at maturity; provided, however, that if
-------- -------
an Interest Payment Date for Floating Rate Book-Entry Notes
would otherwise be a day that is not a Business Day with respect
to such Floating Rate Book-Entry Notes, such Interest Payment
Date will be the next succeeding Business Day with respect to
such Floating Rate Book-Entry Notes, except in the case of a
LIBOR Note if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided, further, that
-------- -------
in the case of a Floating Rate Book-Entry Note issued between a
Record Date and the related Interest Payment Date (a "Book-Entry
Gap Note"), the first interest payment will be made on the
Interest Payment Date following the next succeeding Record Date.
<PAGE> 39
8
Notice of Interest Payment and Record Dates. On the first
-------------------------------------------
Business Day of February, May, August and November of each year,
the Paying Agent will deliver to the Trustee and DTC a written
list of Record Dates and Interest Payment Dates that will occur
with respect to Book-Entry Notes during the six-month period
beginning on such first Business Day. Promptly after each date
upon which interest is determined for Floating Rate Notes issued
in book-entry form, the Calculation Agent, if other than the
Company, will notify the Company, the Trustee, Paying Agent and
Standard & Poor's Ratings Group of the interest rates determined
on such dates. Promptly after each Payment the Paying Agent will
notify the Trustee that funds were segregated and paid to the
Holders and the dates and the amounts thereof.
Calculation of Fixed Rate Book-Entry Notes. Interest on Fixed Rate Book-Entry
Interest: ---------------------------
Notes (including interest for partial periods) will be calculated
on the basis of a 360-day year of twelve thirty-day months.
Floating Rate Book-Entry Notes. Interest rates on Floating Rate
------------------------------
Book-Entry Notes will be determined as set forth in the form of
such Notes or in the applicable Pricing Supplement. Interest on
Floating Rate Book-Entry Notes will be calculated on the basis
of actual days elapsed and a year of 360 days, except that, in
the case of Treasury Rate Notes and CMT Rate Notes, interest
will be calculated on the basis of the actual number of days in
the year.
Payments of Payments of Interest Only. Promptly after each Record Date,
Principal and -------------------------
Interest: Society will deliver to the Company and DTC a written notice
specifying by CUSIP number the amount of interest to be paid on
each Global Security other than an Amortizing Note on the
following Interest Payment Date (other than an Interest Payment
Date coinciding with maturity or any earlier redemption or
repayment date) and the total of such amounts. DTC will confirm
the amount payable on each such Global Security on such Interest
Payment Date by reference to the daily bond reports published by
Standard & Poor's Ratings Group. In the case of Amortizing
Notes, the Paying Agent, if other than the Company, will provide
separate written notice to the Company, the Trustee and to DTC
prior to each Interest Payment Date at the time and in the manner
set forth in the Letter of Representation. If the Paying Agent
is the Company, then notice need only be given to the Trustee and
to DTC. The Company will pay to the Paying Agent, the total
amount of interest due on such Interest Payment Date (and, in the
case of an Amortizing Note, principal and interest) (other than
at maturity),
<PAGE> 40
9
and the Paying Agent will pay such amount to DTC at the times and
in the manner set forth below under "Manner of Payment."
Payments at Maturity or upon Redemption or Repayment. On or
----------------------------------------------------
about the first Business Day of each month, the Paying Agent will
deliver to the Company and DTC a written list of principal and
interest to be paid on each Global Security other than an
Amortizing Note maturing either at maturity or on a redemption or
repayment date in the following month. The Paying Agent and DTC
will confirm the amounts of such principal and interest payments
with respect to each such Global Security on or about the fifth
Business Day preceding the Maturity Date or redemption or
repayment date of such Global Security. In the case of
Amortizing Notes, the Paying Agent will provide separate written
notice to the Company (if required) and to DTC prior to the
Maturity Date and any redemption or repayment date, as the case
may be, at the times and in the manner set forth in the Letter of
Representation. The Company will pay to the Paying Agent the
principal amount of such Global Security, together with interest
due at such Maturity Date or redemption or repayment date. The
Paying Agent will pay such amounts to DTC at the times and in the
manner set forth below under "Manner of Payment." The Paying
Agent will notify the Trustee in writing that all funds were
segregated and paid to the Holders in the manner set forth in the
Indenture.
Payments Not on Business Days. If any Interest Payment Date or
-----------------------------
the Maturity Date or redemption or repayment date of a Global
Security representing Fixed Rate Book-Entry Notes is not a
Business Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Interest Payment Date,
Maturity Date or redemption or repayment date, as the case may
be. If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Global Security representing a
Floating Rate Book-Entry Note would otherwise fall on a day that
is not a Business Day, the payment due on such day shall be made
on the next succeeding day that is a Business Day with respect to
such Notes with the same effect as if such Business Day were the
Interest Payment Date, Maturity Date or date of redemption or
repayment, as the case may be, except that, in the case of Book-
Entry LIBOR Notes, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date or redemption or
repayment date shall be the immediately preceding day that is a
Business Day with respect to such Book-Entry LIBOR Notes.
<PAGE> 41
10
Promptly after payment to DTC of the principal and interest due
on the Maturity Date or redemption or repayment date of such
Global Security, the Registrar will cancel such Global Security
in accordance with the terms of the Indenture and deliver it to
the Trustee with a certificate of cancellation. On the first
Business Day of each month, Society will deliver to the Company
and to the Trustee a written statement indicating the total
principal amount of outstanding Book-Entry Notes as of the
immediately preceding Business Day.
Manner of Payment. The total amount of any principal and
-----------------
interest due on Global Securities on any Interest Payment Date or
at maturity or upon redemption or repayment shall be paid by the
Company to the Paying Agent in funds available for immediate use
by the Paying Agent as of 9:30 A.M. (New York City time) on such
date. The Company will make such payment on such Global
Securities by wire transfer to the Paying Agent or by instructing
the Paying Agent to withdraw funds from an account maintained by
the Company at the Paying Agent solely for such purpose. The
Company will confirm such instructions in writing to the Trustee
and the Paying Agent. Prior to 10 a.m. (New York City time) on
each Maturity Date or redemption or repayment date or, if either
such date is not a Business Day, as soon as possible thereafter,
following receipt of such funds from the Company the Paying Agent
will pay by separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC) to an account
at the Federal Reserve Bank of New York previously specified by
DTC, in funds available for immediate use by DTC, each payment of
principal (together with interest thereon) due on Global
Securities on any Maturity Date or redemption or repayment date.
On each Interest Payment Date or, if any such date is not a
Business Day, as soon as possible thereafter, interest payments
and, in the case of Amortizing Notes, interest and principal
payments shall be made to DTC in same day funds in accordance
with existing arrangements between Society and DTC. Thereafter on
each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds
available for immediate use to the respective Participants in
whose names the Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system maintained by
DTC. Neither the Company, the Trustee, nor the Paying Agent shall
have any responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on the Book-
Entry Notes.
<PAGE> 42
11
Withholding Taxes. The amount of any taxes required under
-----------------
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other person
responsible for forwarding payments directly to the beneficial
owner of such Note.
Preparation If any order to purchase a Book-Entry Note is accepted by or on
of Pricing behalf of the Company, the Company will prepare a pricing
Supplement: supplement (a "Pricing Supplement") reflecting the terms of such
Note and will arrange to file 10 copies of such Pricing
Supplement with the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Securities Act and will
deliver the number of copies of such Pricing Supplement to the
relevant Agent as such Agent shall request by the close of
business on the following Business Day. The relevant Agent will
cause such Pricing Supplement to be delivered to the purchaser of
the Note.
Pricing Supplements shall be sent to the applicable Agent as
indicated below:
If to Salomon Brothers Inc:
Salomon Brothers Inc
8800 Hidden River Parkway
Tampa, FL 33637
Attn: Enrique Castro
Facsimile Number: (813) 558-4123
If to CS First Boston Corporation:
CS First Boston Corporation
5 World Trade Center
New York, New York 10048
Attn: Joan Bryan
Telephone Number: (212) 322-5105
Facsimile Number: (212) 803-4096
with a copy for recordkeeping purposes to:
CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
New York, New York 10005
Attn: Short and Medium Term Finance
Facsimile Number: (212) 318-1498
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attn: Medium-Term Note Trading
Pat Parisi/Karen Robertson
Facsimile Number: (212) 902-0658
<PAGE> 43
12
If to J.P. Morgan Securities Inc.:
J.P. Morgan Securities Inc.
60 Wall Street, 3rd Floor
New York, New York 10260
Attn: Medium-Term Note Desk
Facsimile Number: (212) 648-5909
In each instance that a Pricing Supplement is prepared, the Agent
receiving such Pricing Supplement will affix the Pricing
Supplement to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are attached
(other than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and issuance
of the Global Security representing such Note shall constitute
"settlement" with respect to such Note. All orders accepted by
the Company will be settled on the fifth Business Day following
such acceptance pursuant to the timetable for settlement set
forth below unless the Company and the purchaser agree to
settlement on another day, which shall be no earlier than the
next Business Day.
<PAGE> 44
13
Settlement Settlement Procedures with regard to each Book-Entry Note sold by
Procedures: the Company to or through an Agent shall be as follows (unless
otherwise specified pursuant to a Terms Agreement, as defined in
the Agreement):
A. The relevant Agent will advise the Company by telephone or
facsimile transmission or other acceptable means of the
following settlement information:
1. Title.
2. Specified Currency, if any.
3. Principal amount.
4. Original Issue Date.
5. Settlement Date, Time and Place.
6. Stated Maturity.
7. In the case of a Fixed Rate Book-Entry Note, the Interest
Rate, whether such Note will pay interest annually or
semi-annually and whether such Note is an Amortizing Note
and, if so, the Amortization Schedule, or, in the case of
a Floating Rate Book-Entry Note, the Initial Interest Rate
(if known at such time), Interest Payment Date(s),
Interest Accrual Date, Calculation Agent, Exchange Rate
Agent (if any), Base Rate, Index Maturity, Interest Reset
Period, Initial Interest Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any), Minimum Interest
Rate (if any), Maximum Interest Rate (if any) and the
Interest Determination Date).
8. Redemption or repayment provisions, if any.
9. Extension Provisions, if any.
10. Amortization provisions, if any.
11. Purchase Price.
12. Price to Public.
<PAGE> 45
14
13. Agent's commission, if any, determined as provided in the
Agreement.
14. Net proceeds to the Company.
15. The Agent's Participant account number at DTC.
16. Any other applicable Terms.
B. The Company will advise the Registrar and the Trustee by
telephone facsimile transmission or other acceptable means of
the information set forth in Settlement Procedure "A" above
(which transmission shall constitute "Instructions" as such
term is defined in the Officer's Certificates relating to the
Notes pursuant to Section 301 of the Senior Indenture and the
Subordinated Indenture). The Company will then assign a CUSIP
number to the Global Security representing such Note and will
notify Society and the Agent of such CUSIP number by telephone
or electronic transmission (confirmed in writing) as soon as
practicable.
C. The Registrar will enter a pending deposit message through
DTC's Participant Terminal System, providing the following
settlement information to DTC, the relevant Agent and Standard
& Poor's Ratings Group:
1. The information set forth in Settlement Procedure "A".
2. The Initial Interest Payment Date for such Note, the
number of days by which such date succeeds the related DTC
Record Date (which in the case of Floating Rate Notes
which reset daily or weekly, shall be the date five
calendar days immediately preceding the applicable
Interest Payment Date and, in the case of all other Notes,
shall be the Record Date as defined in the Note) and, if
known, the amount of interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Security representing such
Note.
4. Whether such Global Security will represent any other
Book-Entry Note (to the extent known at such time) and
whether such Note is an Amortizing Note (by an appropriate
notation
<PAGE> 46
15
in the comments field of DTC's Participant Terminal
System).
5. The DTC participant number of the institution through
which the Company will hold the Book-Entry Note.
D. The Registrar will complete and authenticate the Global
Security representing such Note in accordance with the terms
of the written order of the Company then in effect.
E. DTC will credit such Note to the Registrar's participant
account at DTC.
F. The Registrar will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such
Note to the Registrar's participant account and credit such
Note to the relevant Agent's participant settlement account
and credit the Registrar's settlement account for an amount
equal to the price of such Note less such Agent's commission,
if any. The entry of such a deliver order shall constitute a
representation and warranty by the Registrar to DTC that (a)
the Global Security representing such Book-Entry Note has been
issued and authenticated and (b) the Registrar is holding such
Global Security pursuant to the Medium-Term Note Certificate
Agreement between the Registrar and DTC.
G. Unless the relevant Agent purchased such Note as principal,
such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such
Note to such Agent's participant account and credit such Note
to the participant accounts of the Participants with respect
to such Note and (ii) to debit the settlement account of such
Participants and credit the settlement account of such Agent
for an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled
in accordance with SDFS operating procedures in effect on the
settlement date.
I. The Registrar, upon confirming receipt of such funds, will
credit to the account of the Company maintained at Society
National Bank, notified to the Registrar from time to time, in
funds available for
<PAGE> 47
16
immediate use in the amount transferred to the Registrar, in
accordance with Settlement Procedure "F".
J. Unless the relevant Agent purchased such Note as principal,
such Agent will confirm the purchase of such Note to the
purchaser either by transmitting to the Participants with
respect to such Note a confirmation order or orders through
DTC's institutional delivery system or by mailing a written
confirmation to such purchaser.
K. Monthly, the Registrar will send to the Trustee and the
Company a statement setting forth the principal amount of
Notes Outstanding as of that date under the Indenture and
setting forth a brief description of any sales of which the
Company has advised the Registrar but which have not yet been
settled.
Settlement For sales by the Company of Book-Entry Notes to or through an
Procedures Agent (unless otherwise specified pursuant to a Terms Agreement)
Timetable: for settlement on the first Business Day after the sale date,
Settlement Procedures "A" through "J" set forth above shall be
completed as soon as possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day after the
sale date, Settlement Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M., 12
noon and 2:00 P.M., respectively, on the first Business Day after
the sale date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement Procedures "B"
and "C" shall be completed as soon as such rate has been
determined but no later than 12 noon and 2:00 P.M.,
<PAGE> 48
17
respectively, on the second Business Day before the settlement
date. Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled,
Society, after receiving notice from the Company or the Agent,
will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 P.M. on
the Business Day immediately preceding the scheduled settlement
date.
Failure to If the Registrar fails to enter an SDFS deliver order with
Settle: respect to a Book-Entry Note pursuant to Settlement Procedure
"F", the Registrar may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the Registrar's participant
account, provided that the Registrar's participant account
contains a principal amount of the Global Security representing
such Note that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global Security, the
Registrar will mark such Global Security "cancelled", make
appropriate entries in the Registrar's records and send such
cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately
reassigned. If a withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Notes represented by
a Global Security, the Registrar will exchange such Global
Security for two Global Securities, one of which shall represent
such Book-Entry Note or Notes and shall be cancelled immediately
after issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by the
surrendered Global Security and actions described in the
preceding paragraph.
If the purchase price for any Book-Entry Note is not timely paid
to the Participants with respect to such Note by the beneficial
purchaser thereof (or a person, including an indirect participant
in DTC, acting on behalf of such purchaser), such Participants
and, in turn, the Agent may enter a deliver order through DTC's
Participant Terminal System debiting such Note to such Agent's
participant account and crediting such Note to the participant
account of Society and shall notify the
<PAGE> 49
18
Trustee, Society and the Company thereof. Thereafter, Society,
(i) will immediately notify the Company, once Society has
confirmed that such Note has been credited to its participant
account, and the Company shall immediately transfer by Fedwire
(in immediately available funds) to the Agent an amount equal to
the price of such Note which was previously sent by wire transfer
to the account of the Company maintained at Society National Bank
and (ii) Society will deliver the withdrawal message and take the
related actions described in the preceding paragraph. Such
debits and credits will be made on the settlement date, if
possible, and in any event not later than 5:00 P.M. on the
following Business Day. If the fail shall have occurred for any
reason other than failure of such Agent to provide the settlement
information to the Company or to provide a confirmation to the
purchaser, the Company will reimburse the Agent on an equitable
basis for its loss of the use of funds during the period when the
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any action in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been represented by
a Global Security, Society will provide, in accordance with
Settlement Procedures "D" and "F", for the authentication and
issuance of a Global Security representing the Book-Entry Notes
to be represented by such Global Security and will make
appropriate entries in its records.
Posting Rates The Company and the Agents will discuss from time to time the
by Company: rates of interest per annum to be borne by and the maturity of
Securities that may be sold as a result of the solicitation of
offers by an Agent. The Company may establish a fixed set of
interest rates and maturities for an offering period ("posting").
If the Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agent.
Society Not To Nothing herein shall be deemed to require Society or the Trustee
Risk Funds: to risk or expend its own funds in connection with any payments
to the Company, the Agents, DTC or any holders of Notes, it being
understood by all parties that payments made by Society to the
<PAGE> 50
19
Company, the Agents, DTC or any holders of Notes shall be made
only to the extent that funds are provided to Society for such
purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Society will serve as registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of the date of
its authentication by Society. Each Certificated Note will bear
an Original Issue Date, which will be (i) with respect to an
original Certificated Note (or any portion thereof), its original
issuance date (which will be the settlement date) and (ii) with
respect to any Certificated Note (or any portion thereof) issued
subsequently upon exchange of a Certificated Note, or in lieu of
a destroyed, lost or stolen Certificated Note, the original
issuance date of the predecessor Certificated Note, regardless of
the date of authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully registered form
without coupons.
Transfers and A Certificated Note may be presented for transfer or exchange at
Exchanges: the principal corporate trust office of the Registrar.
Certificated Notes will be exchangeable for other Certificated
Notes having identical terms but different authorized
denominations without service charge. Certificated Notes will not
be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine months or more
from date of issue.
Currency: The currency denomination with respect to any Certificated Note
and the currency of payment of interest and principal with
respect to any such Certificated Note shall be as set forth
therein and in the applicable pricing supplement.
Denominations: Unless otherwise provided in a Prospectus Supplement, the
denomination of any Certificated Note will be a minimum of
$100,000 or any amount in excess thereof that is an integral
multiple of $1,000 (or in the case of Notes not denominated in
U.S. dollars as specified in the applicable Pricing Supplement).
<PAGE> 51
20
Interest: General. Interest on each Certificated Note will accrue from the
-------
Original Issue Date of such Note for the first interest period
and from the most recent date to which interest has been paid for
all subsequent interest periods. Unless otherwise specified
therein, each payment of interest on a Certificated Note will
include interest accrued to but excluding the Interest Payment
Date; provided that in the case of Floating Rate Notes with
respect to which the Interest Reset Period is daily or weekly,
interest payable on any Interest Payment Date (other than
interest payable on any date on which principal thereof is
payable, and, if the Note is a Certificated Gap Note (as defined
below), other than interest payable on the first Interest Payment
Date after the Original Issue Date thereof) will include interest
accrued through and including the Record Date immediately
preceding the Interest Payment Date, except that at maturity or
earlier redemption or repayment, the interest payable will
include interest accrued to, but excluding, the Maturity Date or
the date of redemption or repayment, as the case may be.
Record Dates. The Record Date with respect to any Interest
------------
Payment Date in respect of a Certificated Note shall be the date
fifteen calendar days immediately preceding such Interest Payment
Date.
Fixed Rate Certificated Notes. Unless otherwise specified
-----------------------------
pursuant to Settlement Procedure "A" below, interest payments on
Fixed Rate Certificated Notes, other than Amortizing Notes, will
be made semiannually on June 1 and December 1 of each year, and
at maturity or upon any earlier redemption or repayment and
principal and interest payments on Certificated Amortizing Notes
will be made semiannually on June 1 and December 1 of each year
or quarterly on March 1, June 1, September 1 and December 1 of
each year, and at maturity (or any redemption or repayment date);
provided, however, that in the case of a Fixed Rate Certificated
-------- -------
Note issued between a Record Date and an Interest Payment Date or
on an Interest Payment Date, the first interest Payment will be
made on the Interest Payment Date following the next succeeding
Record Date.
Floating Rate Certificated Notes. Interest payments will be made
--------------------------------
on Floating Rate Certificated Notes monthly, quarterly,
semiannually or annually. Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest will be payable, in the
case of Floating Rate Certificated Notes with a daily, weekly or
monthly Interest Reset Date, other than the 11th District Cost
of Funds Rate Notes on the third Wednesday of each month or on
the third Wednesday of
<PAGE> 52
21
March, June, September and December or, in the case of 11th
District Cost of Funds Rate Notes, all of which reset monthly,
the first calendar day of each month, as specified pursuant to
Settlement Procedure "A" below; in the case of Floating Rate
Certificated Notes with a quarterly Interest Reset Date, on the
third Wednesday of March, June, September and December of each
year; in the case of Floating Rate Certificated Notes with a
semiannual Interest Reset Date, on the third Wednesday of the
two months specified pursuant to Settlement Procedure "A" below;
and in the case of Floating Rate Certificated Notes with an
annual Interest Reset Date, on the third Wednesday of the month
specified pursuant to Settlement Procedure "A" below; provided,
--------
however, that if an Interest Payment Date for Floating Rate
-------
Certificated Notes would otherwise be a day that is not a
Business Day with respect to such Floating Rate Certificated
Notes, such Interest Payment Date will be the next succeeding
Business Day with respect to such Floating Rate Certificated
Notes, except in the case of a LIBOR Note if such Business Day
is in the next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day; and
provided, further, that in the case of a Floating Rate
-------- -------
Certificated Note issued between a Record Date and the related
Interest Payment Date (a "Certificated Gap Note"), the first
interest payment will be made on the Interest Payment Date
following the next succeeding Record Date, and in such case,
notwithstanding the fact that an Interest Reset Date may occur
prior to such Interest Payment Date, the Initial Interest Rate
shall remain in effect until the first Interest Reset Date
occurring on or subsequent to such Interest Payment Date.
Notice of Interest Payment and Record Dates. On the first
-------------------------------------------
Business Day of February, May, August and November of each year,
the Paying Agent will deliver to the Company and to the Trustee
a written list of Record Dates and Interest Payment Dates that
will occur with respect to Certificated Notes during the
six-month period beginning on such first Business Day. Promptly
after each date upon which interest is determined for Floating
Rate Notes issued in certificated form, the Calculation Agent
will notify the Company, the Paying Agent and the Trustee of the
interest rates determined on such dates.
Calculation of Fixed Rate Certificated Notes. Interest on Fixed Rate
Interest: -----------------------------
Certificated Notes (including interest for partial periods) will
be calculated on the basis of a 360-day year of twelve thirty-
day months.
Floating Rate Certificated Notes. Interest rates on Floating
--------------------------------
Rate Certificated Notes will be determined as set forth in the
form of such
<PAGE> 53
22
Notes. Interest on Floating Rate Certificated Notes will be
calculated on the basis of actual days elapsed and a year of 360
days, except that, in the case of Treasury Rate Notes, interest
will be calculated on the basis of the actual number of days in
the year.
Payments of The Company will pay to the Paying Agent, the principal
Principal and amount of each Certificated Note (other than an Amortizing Note),
Interest: together with interest due thereon, at its Maturity Date or upon
redemption or repayment of such Note in funds available for
immediate use by the Paying Agent. In the case of an Amortizing
Note, the Company will pay to the Paying Agent the principal
amount due on such Note on such date, together with interest due
thereon, at its Maturity Date or upon redemption or repayment of
such Note in funds available for immediate use by the Paying
Agent. The Paying Agent will pay such amount to the holder of
such Note at its Maturity Date or upon redemption or repayment of
such Note upon presentation and surrender of such Note to the
Paying Agent. Such payment, together with payment of interest
due at maturity or upon redemption or repayment, will be made in
funds available for immediate use by the holder of such Note.
Promptly after such presentation and surrender, the Registrar
will cancel such Certificated Note in accordance with the terms
of the Indenture and deliver it to the Company with a certificate
of cancellation. Unless otherwise specified in the applicable
Pricing Supplement, all interest payments on a Certificated Note
or, in the case of a Certificated Amortizing Note, payments of
principal and interest (other than interest (or interest and
principal) due at maturity or upon redemption or repayment) will
be made by check drawn on the Paying Agent and mailed by the
Paying Agent to the person entitled thereto as provided in such
Note and the Indenture; provided, however, that (i) the holder of
-------- -------
$10,000,000 or more of Notes having the same Interest Payment
Date will be entitled to receive payment by wire transfer of
immediately available funds and (ii) unless otherwise specified
in the applicable Pricing Supplement or unless alternative
arrangements are made, payments on Notes in a currency other than
U.S. dollars will be made by wire transfer of immediately
available funds to an account maintained by the payee with a bank
located outside the United States and, with respect to clauses
(i) and (ii) above, the holder of such Notes will provide the
Paying Agent with appropriate and timely wire transfer
instructions.
Promptly after each Record Date, the Paying Agent will deliver to
the Company a written notice specifying the amount of interest to
be paid
<PAGE> 54
23
on each Certificated Note other than an Amortizing Note on the
following Interest Payment Date (other than an Interest Payment
Date coinciding with maturity or any earlier redemption or
repayment date) and the total of such amounts. In the case of
Amortizing Notes, the Paying Agent will provide separate written
notice to the Company specifying the amount of interest and
principal to be paid on each Amortizing Note on the following
Interest Payment Date (other than an Interest Payment Date
coinciding with maturity or any earlier redemption or repayment
date) and the total of such amounts. Interest at maturity or
upon redemption or repayment will be payable to the person to
whom the payment of principal is payable. On or about the first
Business Day of each month, the Paying Agent will deliver to the
Company and the Trustee a written list of principal and interest,
to the extent ascertainable, to be paid on each Certificated Note
including Amortizing Notes maturing or to be redeemed or repaid
in the following month. The Paying Agent will be responsible for
withholding taxes on interest paid on Certificated Notes as
required by applicable law.
If any Interest Payment Date or the Maturity Date or redemption
or repayment date of a Fixed Rate Certificated Note is not a
Business Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Interest Payment Date,
Maturity Date or redemption or repayment date, as the case may
be. If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Floating Rate Certificated Note
would otherwise fall on a day that is not a Business Day with
respect to such Note, the payment due on such day shall be made
on the next succeeding day that is a Business Day with respect to
such Note with the same effect as if such Business Day were the
stated Interest Payment Date, Maturity Date or date of redemption
or repayment, as the case may be, except that, in the case of
Certificated LIBOR Notes, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date, Maturity
Date or redemption or repayment date shall be the immediately
preceding day that is a Business Day with respect to such
Certificated LIBOR Notes.
Preparation of If any order to purchase a Certificated Note is accepted by or on
Pricing behalf of the Company, the Company will prepare a Pricing
Supplement: Supplement reflecting the terms of such Note and will arrange to
file 10 copies of such Pricing Supplement with the Commission in
accordance with the
<PAGE> 55
24
applicable paragraph of Rule 424(b) under the Act and will
deliver the number of copies of such Pricing Supplement to the
relevant Agent as such Agent shall request by the close of
business on the following Business Day. The relevant Agent will
cause such Pricing Supplement to be delivered to the purchaser of
the Note.
Pricing Supplements shall be sent to the applicable Agent as
indicated below:
If to Salomon Brothers Inc:
Salomon Brothers Inc.
8800 Hidden River Parkway
Tampa, FL 33637
Attn: Enrique Castro
Facsimile Number: (813) 558-4123
If to CS First Boston Corporation:
CS First Boston Corporation
5 World Trade Center
New York, New York 10048
Attn: Joan Bryan
Telephone Number: (212) 322-5105
Facsimile Number: (212) 803-4096
with a copy for recordkeeping purposes to:
CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
New York, New York 10005
Attn: Short and Medium Term Finance
Facsimile Number: (212) 318-1498
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attn: Medium-Term Note Trading
Facsimile Number: (212) 902-0658
If to J.P. Morgan Securities Inc.:
J.P. Morgan Securities Inc.
60 Wall Street, 3rd Floor
New York, New York 10260
Attn: Medium-Term Note Desk
Facsimile Number: (212) 648-5909
<PAGE> 56
25
In each instance that a Pricing Supplement is prepared, the Agent
receiving such Pricing Supplement will affix the Pricing
Supplement to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are attached
(other than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for an authenticated Certificated Note delivered to the
relevant Agent and such Agent's delivery of such Note against
receipt of immediately available funds shall constitute
"settlement" with respect to such Note. All orders accepted by
the Company will be settled on the fifth Business Day following
such acceptance pursuant to the timetable for settlement set
forth below unless the Company and the purchaser agree to
settlement on another day, which shall be no earlier than the
next Business Day.
Settlement Settlement Procedures with regard to each Certificated Note sold
Procedures: by the Company to or through an Agent shall be as follows (unless
otherwise specified pursuant to a Terms Agreement):
A. The relevant Agent will advise the Company by facsimile
transmission or other acceptable means that such Note is a
Certificated Note and of the following settlement information:
1. Name in which such Note is to be registered ("Registered
Owner").
2. Address of the Registered Owner and address for payment of
principal and interest.
3. Taxpayer identification number of the Registered Owner (if
available).
4. Title.
<PAGE> 57
26
5. Specified Currency.
6. Principal Amount.
7. Original Issue Date.
8. Settlement Date, Time and Place.
9. Stated Maturity.
10. In the case of a Fixed Rate Certificated Note, the
Interest Rate, whether such Note will pay interest
annually or semi-annually and whether such Note is an
Amortizing Note and, if so, the Amortization Schedule, or,
in the case of a Floating Rate Certificated Note, the
Initial Interest Rate (if known at such time), Interest
Payment Date(s), Interest Accrual Date, Calculation Agent,
Exchange Rate Agent (if any), Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any), Maximum Interest
Rate (if any) and the Interest Determination Date.
11. Redemption or repayment provisions, if any.
12. Extension Provisions, if any.
13. Amortization Provisions, if any.
14. Purchase Price.
15. Price to Public.
16. Agent's commission, if any, determined as provided in the
Agreement.
17. Denominations.
18. Net proceeds to the Company.
19. Any other applicable Terms.
<PAGE> 58
27
B. The Company will advise the Registrar and the Trustee by
telephone, facsimile transmission or other acceptable means of
the information set forth in Settlement Procedure "A" above
(which transmission shall constitute "Instructions" as such
term is defined in the Officer's Certificates relating to the
Notes pursuant to Section 301 of the Senior Indenture and the
Subordinated Indenture).
C. The Company will have delivered to the Registrar a pre-printed
four-ply packet for such Note, which packet will contain the
following documents in forms that have been approved by the
Company, the relevant Agent and the Paying Agent:
1. Note with customer confirmation.
2. Stub One - For the Paying Agent.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Registrar will complete such Note and authenticate such
Note and deliver it (with the confirmation) and Stubs One and
Two to the relevant Agent, and such Agent will acknowledge
receipt of the Note by stamping or otherwise marking Stub One
and returning it to the Registrar. Such delivery will be made
only against such acknowledgement of receipt and evidence that
instructions have been given by such Agent for payment to the
account of the Company maintained at Society National Bank
(or, with respect to Notes payable in a Specified Currency
other than U.S. dollars, to an account maintained at a bank
selected by the Company notified to the relevant Agent from
time to time in writing) in funds available for immediate use,
of an amount equal to the price of such Note less such Agent's
commission, if any. In the event that the instructions given
by such Agent for payment to the account of the Company are
revoked, the Company will as promptly as possible wire
transfer to the account of such Agent an amount of immediately
available funds equal to the amount of such payment made.
E. Unless the relevant Agent purchased such Note as principal,
such Agent will deliver such Note (with confirmation) to the
customer
<PAGE> 59
28
against payment in immediately available funds. Such Agent
will obtain the acknowledgment of receipt of such Note by
retaining Stub Two.
F. The Registrar will send Stub Three to the Company by first-
class mail. Periodically, the Registrar will also send to the
Company and to the Trustee a statement setting forth the
principal amount of the Notes outstanding as of that date
under the Indenture and setting forth a brief description of
any sales of which the Company has advised the Registrar but
which have not yet been settled.
Settlement For sales by the Company of Certificated Notes to or through an
Procedures Agent (unless otherwise specified pursuant to a Terms Agreement),
Timetables: Settlement Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York City time)
set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure If a purchaser fails to accept delivery of and make payment for
to Settle: any Certificated Note, the relevant Agent will notify the Company
and the Registrar by telephone and return such Note to the
Registrar. Upon receipt of such notice, the Company will
immediately wire transfer to the account of such Agent an amount
equal to the amount previously credited thereto in respect of
such Note. Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the Business
Day following the settlement date. If the failure shall have
occurred for any reason other than a default by such Agent in the
performance of its obligations hereunder and under the Agreement,
then the Company will reimburse such Agent or the Registrar, as
appropriate, on an equitable basis for its loss of the use of the
funds during the period when they were credited to the account of
the Company (such reimbursement for loss of the use of such funds
to be based on the federal funds effective rate then in effect).
Immediately upon receipt of the Certificated Note in respect of
which such failure
<PAGE> 60
29
occurred, the Registrar will mark such Note "cancelled", make
appropriate entries in the Registrar's records and send such Note
to the Company.
Posting Rates The Company and the Agents will discuss from time to time the
by Company: rates of interest per annum to be borne by and the maturity of
Notes that may be sold as a result of the solicitation of offers
by an Agent. The Company may establish a fixed set of interest
rates and maturities for an offering period ("posting"). If the
Company decides to change already posted rates, it will promptly
advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agent.
Society Not to Nothing herein shall be deemed to require Society to risk or
Risk Funds: expend its own funds in connection with any payments to the
Company, the Agents or any holders of Notes, it being understood
by all parties that payments made by Society to the Company, the
Agents or any holders of Notes shall be made only to the extent
that funds are provided to Society for such purpose.
<PAGE> 61
ANNEX I
Pursuant to Section 6(d) of the Distribution Agreement, the independent
auditors shall furnish letters to the Agents to the effect that:
(1) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the Securities Act and the
applicable published Securities Act Regulations.
(2) In their opinion, the consolidated financial statements and any
supplemental financial information or schedules audited by them and included or
incorporated by reference in the Registration Statement or Prospectus comply as
to form in all material respects with the applicable accounting requirements of
the Securities Act or the Exchange Act, as applicable, and the published rules
and regulations thereunder.
(3) On the basis of procedures referred to in such letter, including
a reading of the minute books of the Company since the end of the most recent
fiscal year with respect to which an audit report has been issued, performing
the procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described in SAS
No. 71, Interim Financial Information, on the unaudited consolidated interim
financial statements of the Company included or incorporated by reference in the
Registration Statement and Prospectus and reading the internal unaudited
consolidated interim financial data, if any, for the period from the date of the
latest balance sheet included or incorporated by reference in the Registration
Statement and Prospectus to the date of the latest available internal interim
financial data (which internal unaudited interim financial data, if any, will be
attached to each such letter to the Underwriters); and making inquiries of
officials of the Company responsible for financial and accounting matters
(including inquiries with respect to whether the unaudited consolidated
financial statements comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters whether the internal unaudited consolidated interim financial statements
are stated on a basis substantially consistent with that of the audited
consolidated financial statements incorporated by reference in the Registration
Statement), nothing caused them to believe that:
(A) (i) any material modifications should be made to the unaudited
consolidated financial statements included in any Quarterly Reports on Form
10-Q which are incorporated by reference in the Registration Statement or
Prospectus (the "10-Q Financials") for them to be in conformity with
generally accepted accounting principles applicable to such financial
statements and (ii) the 10-Q Financials do not comply as to form in all
material respects with the applicable requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and regulations; or
(B) the internal unaudited consolidated interim financial statements of
the Company are not in conformity with generally accepted accounting
principles applied on
<PAGE> 62
a basis substantially consistent with that of the audited consolidated
financial statements incorporated by reference in the Registration Statement;
or
(C) at the date of the latest available internal unaudited consolidated
interim financial statements of the Company, there was any decrease in
consolidated shareholders' equity as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the Prospectus
except in all instances for decreases that the Prospectus discloses have
occurred or may occur or as may be set forth in such letter; or
(D) for the period from the date of the latest balance sheet included or
incorporated by reference in the Prospectus to the date of the latest
available internal financial statements of the Company, there was any
decrease, as compared with the corresponding period of the previous year, in
consolidated net interest income, consolidated net interest income after
provision for possible loan losses, consolidated income before taxes or in
the total or per common share amounts of consolidated net income, except in
all cases for changes or decreases that the Prospectus discloses have
occurred or may occur or as may be set forth in such letter;
(E) as of a specified date not more than five days prior to the date of
delivery of such letter to the Agent(s), there was any decrease in
consolidated shareholders' equity as compared with the [amount shown in the
latest balance sheet included or incorporated by reference in the
Prospectus/amount shown in the latest internal unaudited consolidated interim
financial statements], except for any decrease that the Registration
Statement discloses has occurred or may occur.
(4) In addition to their examination referred to in their reports
incorporated by reference in the Registration Statement and Prospectus and the
procedures referred to in (3) above, (a) they have carried out certain other
procedures, not constituting an audit, with respect to certain of the dollar
amounts, percentages and other financial information (in each case to the
extent that such dollar amounts, percentages and other financial information,
either directly or by analysis or computation, are derived from the general
accounting records of the Company and its subsidiaries) which are included or
incorporated by reference in the Prospectus (other than those appearing in the
audited financial statements included therein) and appear in the Prospectus or
incorporated documents, as agreed to by officers of the Company and the
Representative(s), and have found such dollar amounts, percentages and
financial information to be in agreement with the general accounting records of
the Company and its subsidiaries and (b) if any pro forma financial information
is included or incorporated by reference in the Registration Statement and
Prospectus, they have carried out other procedures, not constituting an audit,
with respect to such pro forma financial information and indicated the results
thereof, if requested by the Agent(s) and agreed to by officers of the Company.
<PAGE> 1
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
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
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
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
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
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 as to which all or certain
interest payments and/or the principal amount payable at Maturity are
determined by reference to prices, changes in prices, or differences between
prices, of securities, currency or currencies, currency unit or units or
composite currency or currencies, intangibles, goods, articles or commodities or
by such other objective price, economic or other measures as are specified in
Section 301 hereof.
"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
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
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 or Indexed Security, the dollar equivalent as
of such date of original issuance of the amount determined as provided in clause
(i) above or (iii) below, respectively 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
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
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).
<PAGE> 11
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
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
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
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 made, given, furnished or filed in writing
<PAGE> 15
15
to or with the Company, by first class mail, facsimile or overnight
courier, 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
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
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
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
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
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 calculation agent, if any, 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
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) and/or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method 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
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
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
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
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; and
(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
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
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
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
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
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
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
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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
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
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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
<PAGE> 34
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
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
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
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
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
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
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 second 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
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
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
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).
Section 314. CUSIP Numbers.
- --------------------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
--------
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption.
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
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(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
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
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
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
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
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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 in the case of Original Issue Discount Securities, such portion of
the principal as may be provided for in the terms thereof) (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
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
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
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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
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(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
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 a Board Resolution, an Opinion of
Counsel or 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
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
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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; Conflicting Interests
--------------------------------------------------------------
<PAGE> 57
57
(a) 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.
(b) The following indenture shall be deemed to be specfically described
herein for the purposes of clause (i) of the first proviso contained in TIA
Section 310(b): Indenture dated as of January 1, 1985 between KeyCorp and
Bankers Trust Company.
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
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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
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
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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
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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
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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
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Exhibit 4(a)
(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.
Section 704. Calculation of Original Issue Discount.
--------------------------------------
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods), if any, accrued on
Outstanding Securities as of the end of such year.
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 Significant
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
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(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
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; including
the provisions and procedures relating to Securities convertible into
or exchangeable for any securities of any Person (including the
Company); 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
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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 portion of the principal of an Original Issue Discount Security or
Indexed 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
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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
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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
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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.
<PAGE> 70
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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
<PAGE> 71
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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
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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.
<PAGE> 73
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> 74
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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
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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:
(1) 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
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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
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 Redemption Price shall, until paid, bear
interest from the Redemption Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such 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
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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
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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
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Exhibit 4(b)
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(8) 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
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
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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
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
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
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
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
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 the Repayment Price 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
88
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Repayment Price 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 Repayment Price of such
Security is to be repaid in accordance with the terms of such Security, the
portion of the Repayment Price 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 such Security surrendered that is not to be repaid, must be
specified. 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
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 any Security surrendered for repayment shall not be so repaid upon
surrender thereof, the Repayment Price (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 set forth in such Security or, in the
case of an Original Issue Discount Security, at the Yield to Maturity of 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
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 /S/ Carter B. Chase
---------------------------------------
Attest:
/S/ Daniel R. Stolzer
- ------------------------------
BANKERS TRUST COMPANY
By /S/ Jenna Rossheim
---------------------------------------
Attest:
/S/ Susan Gaon
- ------------------------------
<PAGE> 91
STATE OF OHIO )
) ss.:
COUNTY OF CUYAHOGA )
On the 14th day of June, 1994, before me personally came
Carter B. Chase, to me known, who, being by me duly sworn, did depose and say
that he is E.V.P., Gen. Counsel & Secretary 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.
/s/ Janet M. Golem
- ----------------------------
Janet M. Golem, Notary Public
My comm. exp. 11/4/95
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> 92
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 20th day of July, 1994, before me personally came
Jenna Rossheim, to me known, who, being by me duly sworn, did depose and say
that she is an Assistant Vice President of Bankers Trust Company, one of the
corporations described in and which executed the foregoing instrument; that she
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that she signed her name thereto by like
authority.
/s/ Margaret Bereza
----------------------------
Margaret Bereza
Notary Public - State of New York
No. 31-5023900
Qualified New York County
Commission Expires 2/22/96
<PAGE> 93
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 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 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> 94
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> 95
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> 96
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> 97
Exhibit 4(c)
KEYCORP
TO
BANKERS TRUST COMPANY,
Trustee
__________________
DEBT SECURITIES
__________________
INDENTURE
Dated as of June 10, 1994
__________________
<PAGE> 98
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> 99
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>
<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> 100
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
Section 314. CUSIP Numbers...................................... 43
</TABLE>
ARTICLE FOUR
Satisfaction and Discharge
<TABLE>
<S> <C> <C>
Section 401. Satisfaction and Discharge of Indenture............ 43
Section 402. Application of Trust Money......................... 45
</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......................................... 49
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................................ 51
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................... 52
Section 509. Restoration of Rights and Remedies................. 52
Section 510. Rights and Remedies Cumulative..................... 52
Section 511. Delay or Omission Not Waiver....................... 52
Section 512. Control by Holders................................. 53
Section 513. Waiver of Past Defaults............................ 53
Section 514. Waiver of Stay or Extension Laws................... 54
</TABLE>
<PAGE> 101
iii
ARTICLE SIX
The Trustee
<TABLE>
<S> <C> <C>
Section 601. Notice of Defaults................................. 54
Section 602. Certain Rights of Trustee.......................... 54
Section 603. Not Responsible for Recitals or Issuance of
Securities......................................... 56
Section 604. May Hold Securities................................ 56
Section 605. Money Held in Trust................................ 57
Section 606. Compensation and Reimbursement..................... 57
Section 607. Corporate Trustee Required; Eligibility............ 58
Section 608. Resignation and Removal; Appointment of Successor.. 58
Section 609. Acceptance of Appointment by Successor............. 59
Section 610. Merger, Conversion, Consolidation or Succession to
Business........................................... 61
Section 611. Appointment of Authenticating Agent................ 61
</TABLE>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
<TABLE>
<S> <C> <C>
Section 701. Disclosure of Names and Addresses of Holders ...... 63
Section 702. Reports by Trustee................................. 63
Section 703. Reports by Company................................. 63
Section 704. Calculation of Orginal Issue Discount.............. 64
</TABLE>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
<TABLE>
<S> <C> <C>
Section 801. Company May Consolidate, Etc., Only on Certain
Terms.............................................. 64
Section 802. Successor Substituted.............................. 65
</TABLE>
ARTICLE NINE
Supplemental Indentures
<TABLE>
<S> <C> <C>
Section 901. Supplemental Indentures Without Consent of Holders.. 65
Section 902. Supplemental Indentures with Consent of Holders..... 67
Section 903. Execution of Supplemental Indentures................ 68
Section 904. Effect of Supplemental Indentures................... 68
</TABLE>
<PAGE> 102
iv
<TABLE>
<S> <C> <C>
Section 905. Conformity with Trust Indenture Act.................. 68
Section 906. Reference in Securities to Supplemental Indentures... 68
</TABLE>
ARTICLE TEN
Covenants
<TABLE>
<S> <C> <C>
Section 1001. Payment of Principal, Premium and Interest........... 69
Section 1002. Maintenance of Office or Agency...................... 69
Section 1003. Money for Securities Payments to Be Held in Trust.... 71
Section 1004. Additional Amounts................................... 72
Section 1005. Statement by Officers as to Default.................. 73
Section 1006. Existence............................................ 73
Section 1007. Maintenance of Properties............................ 73
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.......................... 74
</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.... 75
Section 1104. Notice of Redemption................................. 75
Section 1105. Deposit of Redemption Price.......................... 76
Section 1106. Securities Payable on Redemption Date................ 77
Section 1107. Securities Redeemed in Part.......................... 78
</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............ 79
</TABLE>
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
<PAGE> 103
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............................ 80
Section 1303. Covenant Defeasance................................. 80
Section 1304. Conditions to Defeasance or Covenant Defeasance..... 81
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> 1
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
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
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
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
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
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 as to which all or certain
interest payments and/or the principal amount payable at Maturity are determined
by reference to prices, changes in prices, or differences between prices, of
securities, currency or currencies, currency unit or units or composite currency
or currencies, intangibles, goods, articles or commodities or by such other
objective price, economic or other measures as are specified in Section 301
hereof.
"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
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
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
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 or Indexed Security, the dollar equivalent as
of such date of original issuance of the amount determined as provided in clause
(i) above or (iii) below, respectively) 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
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
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
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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
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
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
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
made, given, furnished or filed in writing to or with the Company by first
class mail, facsimile or overnight courier, 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
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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
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
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
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
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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 calculation agent, if any, 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, if applicable, extended or deferred, 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
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(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) and/or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method,
<PAGE> 22
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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
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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
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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
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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; and
(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
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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
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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
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
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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
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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
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
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
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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Reset.
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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
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
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
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
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
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
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
second 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
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
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
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).
Section 314. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as pointed on the Securities or as contained
in any notice of redemption.
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
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
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
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
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
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
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 in the case of Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be provided for in the terms
thereof) (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
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
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
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
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
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 a Board Resolution, an Opinion of Counsel
or 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
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
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
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
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
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
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
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
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.
Section 704. Calculation of Original Issue Discount.
--------------------------------------
Upon request of the Trustee, the Company shall file with the
Trustee promptly at the end of each calendar year a written notice specifying
the amount of original issue discount (including daily rates and accrual
periods), if any, accrued on Outstanding Securities as of the end of such year.
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
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(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
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
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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; including the
provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); 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 portion of the principal of an Original Issue Discount Security
or Indexed Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
<PAGE> 65
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
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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
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
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
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
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
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
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
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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:
(1) 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
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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
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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 Redemption Price shall, until paid, bear
interest from the Redemption Date at the rate of interest set forth in such
Security or, in the case of an Orginal Issue Discount Security, at the Yield to
Maturity of such 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
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
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
78
Exhibit 4(c)
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(5) 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
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
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
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
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
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
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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
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
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
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
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
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
<PAGE> 90
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
<PAGE> 91
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
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.
(l) 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
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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
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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
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
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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
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
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
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
<PAGE> 100
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
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
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
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 the Repayment Price 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
Repayment Price 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 Repayment Price of such
<PAGE> 104
104
Security is to be repaid in accordance with the terms of such Security, the
portion of the Repayment Price 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 such Security surrendered that is not to be repaid, must be
specified. 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
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 any Security surrendered for repayment shall not be so repaid upon
surrender thereof, the Repayment Price (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 set forth in such Security or, in the
case of an Original Issue Discount Security, at the Yield of Maturity of 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
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 /s/ Carter B. Chase
------------------------------
Attest:
/s/ Daniel R. Stolzer
- ------------------------------
BANKERS TRUST COMPANY
By /s/ Jenna Rossheim
------------------------------
Attest:
/s/ Susan Gaon
- ------------------------------
<PAGE> 107
STATE OF OHIO )
) ss.:
COUNTY OF CUYAHOGA )
On the 14th day of June, 1994, before me personally came Carter B.
Chase, to me known, who, being by me duly sworn, did depose and say that he is
E.V.P., Gen. Counsel & Secretary 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.
/s/ Janet M. Golem
----------------------------
Janet M. Golem, Notary Public
My comm. exp. 11/4/95
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> 108
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 20th day of July, 1994, before me personally came Jenna
Rossheim, to me known, who, being by me duly sworn, did depose and say that she
is an Assistant Vice President of Bankers Trust Company, one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that she signed her name thereto by like authority.
/s/ Margaret Bereza
----------------------------
Margaret Bereza
Notary Public - State of New York
No. 31-5023900
Qualified New York County
Commission Expires 2/22/96
<PAGE> 109
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 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 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> 110
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> 111
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> 112
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> 113
Exhibit 4(d)
- --------------------------------------------------------------------------------
KEYCORP
TO
BANKERS TRUST COMPANY,
Trustee
__________________
SUBORDINATED DEBT SECURITIES
__________________
INDENTURE
Dated as of June 10, 1994
__________________
- --------------------------------------------------------------------------------
<PAGE> 114
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> 115
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........ 14
Section 103. Form of Documents Delivered to Trustee...... 15
Section 104. Acts of Holders; Record Dates............... 15
Section 105. Notices, Etc. to Trustee and Company........ 17
Section 106. Notice to Holders; Waiver................... 17
Section 107. Effect of Headings and Table of Contents.... 18
Section 108. Successors and Assigns...................... 19
Section 109. Separability Clause......................... 19
Section 110. Benefits of Indenture....................... 19
Section 111. Governing Law............................... 19
Section 112. Legal Holidays.............................. 19
Section 113. Obligations of the Company Not Obligations
of the Trustee.............................. 20
ARTICLE TWO
Security Forms
Section 201. Forms Generally............................. 20
Section 202. Form of Trustee's Certificate of
Authentication.............................. 21
Section 203. Securities Issuable in Global Form.......... 21
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series........ 22
Section 302. Denominations............................... 27
Section 303. Execution, Authentication, Delivery and
Dating...................................... 27
Section 304. Temporary Securities........................ 29
Section 305. Registration, Registration of Transfer and
Exchange.................................... 32
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.................................. 35
</TABLE>
<PAGE> 116
ii
<TABLE>
<S> <C>
Section 307. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset.......... 36
Section 308. Optional Extension of Maturity.............. 40
Section 309. Persons Deemed Owners....................... 41
Section 310. Cancellation................................ 42
Section 311. Computation of Interest..................... 42
Section 312. Currency and Manner of Payments in Respect
of Securities............................... 42
Section 313. Appointment and Resignation of Successor
Exchange Rate Agent......................... 47
Section 314. CUSIP Numbers............................... 47
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture..... 48
Section 402. Application of Trust Money.................. 49
ARTICLE FIVE
Remedies
Section 501. Events of Default........................... 50
Section 502. Acceleration of Maturity; Rescission and
Annulment................................... 51
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...................... 52
Section 504. Trustee May File Proofs of Claim............ 54
Section 505. Trustee May Enforce Claims Without
Possession of Securities.................... 54
Section 506. Application of Money Collected.............. 55
Section 507. Limitation on Suits......................... 55
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest............. 56
Section 509. Restoration of Rights and Remedies.......... 56
Section 510. Rights and Remedies Cumulative.............. 57
Section 511. Delay or Omission Not Waiver................ 57
Section 512. Control by Holders.......................... 57
Section 513. Waiver of Past Defaults..................... 57
Section 514. Waiver of Stay or Extension Laws............ 58
</TABLE>
<PAGE> 117
iii
<TABLE>
<S> <C>
ARTICLE SIX
The Trustee
Section 601. Notice of Defaults.......................... 58
Section 602. Certain Rights of Trustee................... 59
Section 603. Not Responsible for Recitals or Issuance of
Securities.................................. 60
Section 604. May Hold Securities......................... 61
Section 605. Money Held in Trust......................... 61
Section 606. Compensation and Reimbursement.............. 61
Section 607. Corporate Trustee Required; Eligibility..... 62
Section 608. Resignation and Removal; Appointment of
Successor................................... 62
Section 609. Acceptance of Appointment by Successor...... 64
Section 610. Merger, Conversion, Consolidation or
Succession to Business...................... 65
Section 611. Appointment of Authenticating Agent......... 66
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Disclosure of Names and Addresses of
Holders..................................... 68
Section 702. Reports by Trustee.......................... 68
Section 703. Reports by Company.......................... 68
Section 704. Calculation of Original Issue Discount...... 69
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on
Certain Terms............................... 69
Section 802. Successor Substituted....................... 70
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of
Holders..................................... 70
Section 902. Supplemental Indentures with Consent of
Holders..................................... 72
Section 903. Execution of Supplemental Indentures........ 73
</TABLE>
<PAGE> 118
iv
<TABLE>
<S> <C>
Section 904. Effect of Supplemental Indentures........... 74
Section 905. Conformity with Trust Indenture Act......... 74
Section 906. Reference in Securities to Supplemental
Indentures.................................. 74
Section 907. Subordination Unimpaired.................... 74
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.. 75
Section 1002. Maintenance of Office or Agency............. 75
Section 1003. Money for Securities Payments to Be Held in
Trust....................................... 77
Section 1004. Additional Amounts.......................... 78
Section 1005. Statement by Officers as to Default......... 79
Section 1006. Existence................................... 79
Section 1007. Maintenance of Properties................... 80
Section 1008. Payment of Taxes and Other Claims........... 80
Section 1009. Waiver of Certain Covenants................. 80
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.................... 81
Section 1102. Election to Redeem; Notice to Trustee....... 81
Section 1103. Selection by Trustee of Securities to Be
Redeemed.................................... 81
Section 1104. Notice of Redemption........................ 82
Section 1105. Deposit of Redemption Price................. 83
Section 1106. Securities Payable on Redemption Date....... 84
Section 1107. Securities Redeemed in Part................. 85
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.................... 85
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.................................. 85
Section 1203. Redemption of Securities for Sinking Fund... 86
</TABLE>
<PAGE> 119
v
<TABLE>
<S> <C>
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance. 87
Section 1302. Defeasance and Discharge.................... 87
Section 1303. Covenant Defeasance......................... 88
Section 1304. Conditions to Defeasance or Covenant
Defeasance.................................. 88
Section 1305. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions.................................. 90
Section 1306. Reinstatement............................... 91
ARTICLE FOURTEEN
Meetings of Holders of Securities
Section 1401. Purposes for Which Meetings May Be Called... 92
Section 1402. Call, Notice and Place of Meetings.......... 92
Section 1403. Persons Entitled to Vote at Meetings........ 93
Section 1404. Quorum; Action.............................. 93
Section 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings..................... 94
Section 1406. Counting Votes and Recording Action of
Meetings.................................... 95
ARTICLE FIFTEEN
Conversion of Securities
Section 1501. Applicability of Article.................... 96
Section 1502. Right of Holders to Convert Securities...... 96
Section 1503. Issuance of Shares of Common Stock on
Conversions................................. 97
Section 1504. No Payment or Adjustment for Interest or
Dividends................................... 98
Section 1505. Adjustment of Conversion Price.............. 98
Section 1506. No Fractional Shares to Be Issued........... 104
Section 1507. Preservation of Conversion Rights upon
Consolidation, Merger, Sale or Conveyance... 104
Section 1508. Notice to Holders of the Securities of a
Series Prior to Taking Certain Types of
Action...................................... 105
</TABLE>
<PAGE> 120
vi
<TABLE>
<S> <C>
Section 1509. Covenant to Reserve Shares for Issuance
on Conversion of Securities................. 106
Section 1510. Compliance with Governmental Requirements... 106
Section 1511. Payment of Taxes upon Certificates for
Shares Issued upon Conversion............... 107
Section 1512. Trustee's Duties with Respect to Conversion
Provisions.................................. 107
ARTICLE SIXTEEN
Subordination of Securities
Section 1601. Securities Subordinate to Senior
Indebtedness................................ 108
Section 1602. Payment Over of Proceeds upon Dissolution,
Etc. ....................................... 108
Section 1603. No Payment When Senior Indebtedness in
Default..................................... 109
Section 1604. Payment Permitted if No Default............. 110
Section 1605. Subrogation to Rights of Holders of Senior
Indebtedness................................ 110
Section 1606. Provisions Solely to Define Relative Rights. 111
Section 1607. Trustee to Effectuate Subordination and
Payment Provisions.......................... 111
Section 1608. No Waiver of Subordination Provisions....... 111
Section 1609. Notice to Trustee........................... 112
Section 1610. Reliance on Judicial Order or Certificate
of Liquidating Agent........................ 113
Section 1611. Trustee Not Fiduciary for Holders of Senior
Indebtedness or Entitled Persons............ 113
Section 1612. Rights of Trustee as Holder of Senior
Indebtedness or Entitled Person;
Preservation of Trustee's Rights............ 113
Section 1613. Article Applicable to Paying Agents......... 114
Section 1614. Relationship to Existing Subordinated
Indebtedness; Payment of Excess Proceeds in
Certain Cases............................... 114
ARTICLE SEVENTEEN
Repayment at the Option of Holders
Section 1701. Applicability of Article.................... 116
Section 1702. Repayment of Securities..................... 116
Section 1703. Exercise of Option.......................... 117
Section 1704. When Securities Presented for Repayment
Become Due and Payable...................... 117
Section 1705. Securities Repaid in Part................... 118
</TABLE>
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
FORMS OF CERTIFICATION
<PAGE> 121
vii
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
FORMS OF CERTIFICATION
<PAGE> 1
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
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
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> 4
[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> 5
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> 6
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> 7
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> 1
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
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
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> 4
[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> 5
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> 6
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> 7
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> 8
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> 9
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> 1
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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> 25
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. 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> 26
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> 27
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> 28
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> 29
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> 30
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> 31
Exhibit C to Warrant Agreement
[Compensation of Warrant Agent]
<PAGE> 32
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> 33
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> 34
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> 1
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
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
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
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> 1
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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> 33
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> 34
[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> 35
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> 36
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> 37
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> 38
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> 1
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> 2
[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> 1
Exhibit 5
KEYCORP
127 Public Square
Cleveland, Ohio 44114-1306
April 3, 1995
Board of Directors
KeyCorp
127 Public Square
Cleveland, Ohio 44114
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
I am Senior Vice President and Senior Managing Counsel of KeyCorp
Management Company, an affiliate of KeyCorp (the "Corporation") and I have
acted as counsel to the Corporation in connection with the Registration
Statement on Form S-3 filed on April 3, 1995 with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the
"Registration Statement"). The Registration Statement covers up to
$900,000,000 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, a copy of which is included
as 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, a copy of which is included as 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");
CMR95113
<PAGE> 2
Board of Directors
April 3, 1995
Page 2
(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 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.
I am familiar with the corporate proceedings of the Corporation to date
with respect to the proposed issuance and sale of the Securities, and I have
examined such corporate records of the Corporation and such other documents and
certificates as I have deemed necessary as a basis for the opinions hereinafter
expressed. In rendering this opinion, I have assumed, without any independent
investigation, that: (i) all documents that have been submitted to me as
originals are authentic, and that all documents that have been submitted to me
as copies conform to authentic, original documents; and (ii) all persons
executing agreements, instruments, or documents examined or relied upon by me
had the capacity to sign such agreements, instruments, or documents, and
all such signatures are genuine.
CMR95113
<PAGE> 3
Board of Directors
April 3, 1995
Page 3
I 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 I have deemed relevant, I am 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 such Debt
Securities will constitute valid and legally binding obligations of the
Corporation entitled to the benefits provided by the applicable Indenture.
CMR95113
<PAGE> 4
Board of Directors
April 3, 1995
Page 4
(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 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.
(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 Agreement in accordance with such
corporate action, such Securities Warrants shall constitute valid and legally
binding obligations of the
CMR95113
<PAGE> 5
Board of Directors
April 3, 1995
Page 5
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
corporate 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 corporate 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, 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.
This opinion is given on the basis of the law and the facts existing
as of the date hereof. I assume no obligation to advise you of changes in
matters of fact or law which may thereafter occur. My opinion is based on
statutory laws and judicial decisions that are in effect on the date hereof,
and I do not opine with respect to any law, regulation, rule or governmental
policy which may be enacted or adopted after the date hereof.
I am 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 Federal laws of the United States. I 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. I 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.
CMR95113
<PAGE> 6
Board of Directors
April 3, 1995
Page 6
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.
I 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 my name therein.
Very truly yours,
/s/ Steven N. Bulloch
-----------------------------------
Steven N. Bulloch
Senior Vice President and
Senior Managing Counsel
CMR95113
<PAGE> 1
Exhibit 23(a)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Post-Effective Amendment No. 1 to Form S-3 (No. 33-53643) and to the
Registration Statement (Form S-3) and related Prospectus of KeyCorp for the
registration of a combined $900,000,000 of securities and to the incorporation
by reference therein of our report dated January 18, 1995, except for Note 2, as
to which the date is February 28, 1995, with respect to the consolidated
financial statements of KeyCorp incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1994, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
March 29, 1995
<PAGE> 1
Exhibit (23)(c)
[LETTERHEAD OF THOMPSON, HINE AND FLORY APPEARS HERE]
April 3, 1995
KeyCorp
127 Public Square
Cleveland, Ohio 44114
Ladies and Gentlemen:
We hereby consent to the quotation of our opinion under the heading
"United States Tax Considerations" in the Prospectus Supplement filed as
a part of KeyCorp's Registration Statement on Form S-3 filed with the
Securities and Exchange Commission on April 3, 1995, which Registration
Statement also constitutes a first post-effective amendment to KeyCorp's
Registration Statement on Form S-3, File No. 33-53643, and to the use of our
name therein.
Very truly yours,
/s/ Thompson, Hine and Flory
<PAGE> 1
Exhibit 24(a)
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Victor J. Riley, Jr.
------------------------------------------
Victor J. Riley, Jr.
Chairman of the Board,
Chief Executive Officer, and
Director (Principal Executive Officer)
<PAGE> 2
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Robert W. Gillespie
------------------------------------------
Robert W. Gillespie
Chief Operating Officer and
Director (Principal Operating Officer)
<PAGE> 3
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ James W. Wert
------------------------------------------
James W. Wert
Senior Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
<PAGE> 4
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Lee G. Irving
------------------------------------------
Lee G. Irving
Executive Vice President, Treasurer,
and Chief Accounting Officer
(Principal Accounting Officer)
<PAGE> 5
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ H. Douglas Barclay
------------------------------------------
H. Douglas Barclay
Director
<PAGE> 6
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ William G. Bares
------------------------------------------
William G. Bares
Director
<PAGE> 7
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Albert C. Bersticker
------------------------------------------
Albert C. Bersticker
Director
<PAGE> 8
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Thomas A. Commes
------------------------------------------
Thomas A. Commes
Director
<PAGE> 9
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Kenneth M. Curtis
------------------------------------------
Kenneth M. Curtis
Director
<PAGE> 10
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ John C. Dimmer
------------------------------------------
John C. Dimmer
Director
<PAGE> 11
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Henry S. Hemingway
------------------------------------------
Henry S. Hemingway
Director
<PAGE> 12
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Charles R. Hogan
------------------------------------------
Charles R. Hogan
Director
<PAGE> 13
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Lawrence A. Leser
------------------------------------------
Lawrence A. Leser
Director
<PAGE> 14
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Steven A. Minter
------------------------------------------
Steven A. Minter
Director
<PAGE> 15
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ M. Thomas Moore
------------------------------------------
M. Thomas Moore
Director
<PAGE> 16
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ John C. Morley
------------------------------------------
John C. Morley
Director
<PAGE> 17
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Richard W. Pogue
------------------------------------------
Richard W. Pogue
Director
<PAGE> 18
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Robert A. Schumacher
------------------------------------------
Robert A. Schumacher
Director
<PAGE> 19
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Dennis W. Sullivan
------------------------------------------
Dennis W. Sullivan
Director
<PAGE> 20
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Peter G. Ten Eyck, II
------------------------------------------
Peter G. Ten Eyck, II
Director
<PAGE> 21
KEYCORP
POWER OF ATTORNEY
-----------------
The undersigned, an officer or director, or both an officer and director of
KeyCorp, an Ohio corporation, which anticipates filing with the Securities and
Exchange Commission, in Washington, D.C., under the provisions of the Securities
Act of 1933, as amended, such registration statements or amendments to existing
registration statements (on Form S-3 or such other form or forms as are
applicable) to effect the shelf registration pursuant to Rule 415 of the
Securities and Exchange Commission debt, equity, capital securities and
warrants to purchase such securities with an aggregate issue price of up to
$1,000,000,000 to be issued and sold from time to time in one or more public or
private offerings, hereby constitutes and appoints Carter B. Chase, James W.
Wert, Lee Irving and Daniel R. Stolzer, and each of them, as attorney for the
undersigned, with full power of substitution and resubstitution for and in the
name, place, and stead of the undersigned, to sign and file the proposed
statements and any and all amendments, post-effective registration statements
and any and all amendments, post-effective amendments and exhibits thereto,
and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such securities or such
registration with full power and authority to do and perform any and all acts
and things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
March 16, 1995.
/s/ Nancy B. Veeder
------------------------------------------
Nancy B. Veeder
Director
<PAGE> 1
[LETTERHEAD OF KEYCORP APPEARS HERE]
Exhibit (24)(b)
CERTIFICATION
-------------
I, Sheldon R. Hartman, hereby certify that I am the duly elected Assistant
Secretary of KeyCorp, a corporation duly organized and existing under the laws
of the State of Ohio, that I have in my possession the corporate records
regarding the Corporation, that attached hereto is a true and correct copy of a
resolution authorizing the increase in the aggregate issue price of securities
available for issuance under Shelf Registration dated March 16, 1995, duly
adopted by the Board of Directors of the Corporation in a meeting thereof duly
called and held March 16, 1995, at which meeting a quorum of the Board was
present throughout, and that the resolution has not been rescinded or amended
and remains in full force and effect.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and the
seal of the Corporation this 24th day of March, 1995.
{SEAL} /s/ Sheldon R. Hartman
----------------------
Sheldon R. Hartman
Assistant Secretary
KYR43080.DOC
<PAGE> 2
RESOLUTIONS AUTHORIZING AN INCREASE IN THE AGGREGATE ISSUE PRICE OF SECURITIES
AVAILABLE FOR ISSUANCE UNDER SHELF REGISTRATION ADOPTED BY THE BOARD OF
DIRECTORS OF KEYCORP ON MARCH 16, 1995.
RESOLVED, that the Board of Directors has previously authorized
by Resolutions adopted by the Board of Directors on March 17, 1994 and on May
19, 1994 (collectively the "Shelf Resolutions") (copies of which are attached
hereto), the issuance and sale by the Corporation of Securities (as defined in
the Shelf Resolutions adopted on March 17, 1994) having an aggregate issue
price of up to $750,000,000 and pursuant to a Registration Statement designated
by the U.S. Securities and Exchange Commission as No. 33-53643 (the "KeyCorp
Registration Statement").
RESOLVED, that $155,000,000 remains available for issuance of
Securities in the KeyCorp Registration Statement.
RESOLVED, that the Corporation desires to increase the
aggregate issue price of Securities which may be issed and sold pursuant to the
Shelf Resolution by an additional $845,000,000.
RESOLVED, that the aggregate issue price of Securities which
may be issued and sold pursuant to the Shelf Resolutions is hereby increased
by an additional $845,000,000 to equal a total aggregate amount of Securities
available to be issued and sold of $1,000,000,000 and that the Shelf
Resolutions, including the authorizations contained therein, are hereby
reaffirmed and adopted with respect to such additional authorized amount of
Securities, in each case, having the same force and effect with respect to such
additional authorized amount of Securities as if such resolutions and
authorizations had been incorporated and rewritten herein, including, without
limitation, all authority delegated to the Executive Committee and the officers
of the Corporation by the Shelf Resolutions adopted on May 19, 1994.
RESOLVED, that the officers of the Corporation are hereby
authorized, for and on behalf of the Corporation, to prepare or cause to be
prepared and to execute and file with the Securities and Exchange Commission
amendments to existing Registration Statements or one or more new Registration
Statements on Form S-3 (or such other form or forms as are applicable) under
the Securities Act of 1933, as amended, pursuant to Rule 415 of the Securities
and Exchange Commission for the purpose of registering the offering of the
additional amount of Securities authorized by these resolutions on a delayed or
continuous basis, and any amendments, post-effective amendments, or
supplements thereto, and exhibits and other documents in connection therewith.
RESOLVED, that Carter B. Chase, James W. Wert, Lee Irving, and
Daniel R. Stolzer, or any one of them or any other officer of the Corporation
designated by any one of them be, and
<PAGE> 3
each of them hereby is, appointed as the attorneys of the Corporation, with
full power of substitution and resubstitution, for and in the name, place or
stead of the Corporation, to sign and file (a) any registration statement on
Form S-3 (or on such other form or forms as applicable), (b) any and all
amendments, post-effective amendments, or supplements thereto, and exhibits,
and (c) any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to such additional Securities or
such registration, with full power and authority to do, and perform any and all
such acts and things whatsoever requisite and necessary to effect such
registration.
RESOLVED, that the officers of the Corporation are authorized
to include the Debt Securities (as defined in the Shelf Resolutions adopted on
March 17, 1994), if any, under one or more new indentures or the existing Debt
Securities Indenture dated as of June 10, 1994, between the Corporation and
Bankers Trust Company, as Trustee, or, in case of Subordinate Debt Securities
Indenture dated June 10, 1994 between the Corporation and Bankers Trust
Company, as Trustee.
RESOLVED, that the officers of the Corporation be and each of
them are hereby authorized to take any and all actions previously authorized
under the Shelf Resolutions as to the KeyCorp Registration Statement and to
take any and all such other actions not inconsistent with such Shelf
Resolutions as may be necessary or advisable to carry out the intent and
purposes of the foregoing resolutions, and that the signature of any such
officer to any document shall be conclusive, as to the approval of the
Corporation and this Board of Directors of the form and substance of such
written instrument.
<PAGE> 4
Attachment 1 to
Exhibit 24(b)
Resolution adopted by the Board of Directors of KeyCorp on March 17, 1994.
WHEREAS, the Corporation's Registration Statement No. 33-51652,
authorized by resolutions adopted by the Executive Committee of the Board of
Directors of the Corporation on January 17, 1991, July 17, 1992, and December
17, 1992, and filed on September 3, 1992 with the Securities and Exchange
Commission (the "Commission") for the shelf registration of its debt securities
has $200,000,000 of unissued subordinated debt remaining unsold and $189,400,000
of unissued medium-term notes remaining unsold, and
WHEREAS, the Corporation's Registration Statement No. 33-39734,
authorized by a resolution adopted by the Executive Committee of the Board of
Directors of the Corporation on January 17, 1991 and filed on May 17, 1991 with
the Commission for the shelf registration of its preferred stock has
$200,000,000 of unissued equity securities remaining unsold, and
WHEREAS, the Corporation wishes to consolidate the above-referenced
shelf registrations and to increase the amount of its securities registered by
$160,600,000 so that the total principal amount of securities available for
issuance under shelf registration will be $750,000,000, and
WHEREAS, the Corporation wishes to include additional types of both
debt and equity securities to its securities available for issuance under shelf
registration to provide enhanced and diversified financing capacity.
RESOLVED, that the Corporation is hereby authorized to issue, from
time to time, in one or more public or private offerings, securities with an
aggregate issue price of up to $750,000,000. The securities may be either: (a)
debt securities ("Debt Securities") which may be either senior or
subordinated indebtedness, including without limitation, medium-term notes; (b)
warrants to purchase Debt Securities ("Debt Warrants"); (c) Common Shares with
a par value of $1.00 each of the Corporation ("Common Shares") accompanied by
rights to purchase Common Shares ("Rights") under the Corporation's Rights
Agreement, dated August 25, 1989, as amended; (d) shares of the Corporation's
preferred stock with a par value of $1.00 each ("Preferred Stock"), which may
be issued in the form of depositary shares evidenced by depositary receipts
("Depositary Shares"); (e) warrants to purchase Common Shares, Preferred Stock,
or Depositary Shares ("Stock Warrants"), or any combination of the foregoing,
either individually or as units consisting of one or more securities. Any
issue of subordinated Debt Securities (the "Subordinated Debt Securities") may
be exchangeable for Common Shares, perpetual preferred stock, or other equity
securities acceptable to the Corporation's primary federal banking regulator
("Capital Securities"), and any issue of Preferred Stock may be exchangeable
for any class or series of Capital Securities, or other debt securities of the
Corporation. The
<PAGE> 5
Subordinated Debt Securities may be subject to conversion by the Corporation
into Capital Securities of the Corporation. Preferred Stock may be subject to
conversion by the Corporation into any class or series of Capital Securities.
The Debt Securities, the Preferred Stock, the Depositary Shares, and the Common
Shares are hereinafter referred to collectively as "Warrant Exercise Items".
The Debt Warrants and the Stock Warrants are collectively referred to as the
"Warrants" and the Debt Securities, Warrants, Common Shares, Rights, Preferred
Stock and Depositary Shares are collectively referred to herein as
"Securities". The Securities may be offered and sold in either a single
offering or a series of offerings in the United States or elsewhere, may be
denominated when issued in U.S. dollars or any foreign currency, currency unit
or composite currency ("Currency") and may be issued on such terms as hereafter
shall be determined by this Board of Directors.
FURTHER RESOLVED, that the officers of the Corporation are hereby
authorized, for and on behalf of the Corporation, to prepare or cause to be
prepared and to execute and file with the Commission a Registration Statement on
Form S-3 (or on such other form or forms as are applicable) under the Securities
Act of 1933, as amended (the "1933 Act") pursuant to Rule 415 of the Commission
for the purpose of registering the offering of the Securities on a delayed or
continuous basis, and any amendments, post-effective amendments, or supplements
thereto, each a "Prospectus Supplement", and exhibits and other documents in
connection therewith.
FURTHER RESOLVED, that the Chief Financial Officer, Treasurer, General
Counsel and Secretary, or any one of them or any other officer of the
Corporation designated by any one of them be, and each of them hereby is,
appointed as the attorneys of the Corporation, with full power of substitution
and resubstitution, for and in the name, place or stead of the Corporation, to
sign and file (a) a Registration Statement on Form S-3 (or on such other form or
forms as are applicable), (b) any and all amendments, post-effective amendments
and exhibits thereto, and (c) any and all applications and other documents to be
filed with the Commission pertaining to such securities or such registration,
with full power and authority to do and perform any and all such acts and things
whatsoever requisite and necessary to effect such registration.
FURTHER RESOLVED, that the Debt Securities will be issued subject to
the terms and conditions of one or more indentures and the officers of the
Corporation are authorized to include the Senior Debt Securities under the
existing Senior Indenture, dated as of December 15, 1992, between the
Corporation and Morgan Guaranty Trust Company of New York, Trustee, and to
include the Subordinated Debt Securities under the existing Subordinated
Indenture, dated as of June 15, 1992, between the Corporation and Morgan
Guaranty Trust Company of New York, Trustee.
- 2 -
<PAGE> 6
FURTHER RESOLVED, that the officers of the Corporation are hereby
authorized, for and on behalf of the Corporation, in connection with any
offering of the Securities, to take any action which any of them may deem
necessary or advisable to effect the registration or qualification of the
Securities under the securities or blue sky laws of any of the States of the
United States of America or to carry out such offering, as contemplated by
resolutions heretofore adopted, and in connection therewith to execute,
acknowledge, verify, deliver, file, and publish all such applications, reports,
issuer's covenants, resolutions, and other papers and instruments, to post bonds
or otherwise give security as may be required under such laws and to take all
such further action as any of them may deem necessary or advisable in order to
maintain any such registration or qualification for as long as any such officer
may deem to be in the best interests of the Corporation.
FURTHER RESOLVED, that the officers of the Corporation are hereby
authorized, for and on behalf of the Corporation, to execute and file
irrevocable written consents to service of process in all States of the United
States of America where such consents may be required or advisable under the
securities law thereof in connection with the registration or qualification of
the Securities, and to appoint the appropriate person as agent of the
Corporation for the purpose of receiving and accepting such process.
FURTHER RESOLVED that, any form of additional resolution or
resolutions required by law or regulation in connection with the foregoing
resolutions, be and hereby are adopted, and that the Secretary or any Assistant
Secretary of the Corporation be and each of them is hereby authorized to certify
as having been adopted by the Board of Directors of the Corporation any such
form of resolution, and a copy of each form of resolution so certified shall be
attached to the minutes of this meeting.
FURTHER RESOLVED, that the officers of the Corporation be and each of
them are hereby authorized to take any and all action as may be necessary or
advisable to carry out the intent and purposes of the foregoing resolutions, and
that the signature of any such officer to any document shall be conclusive, as
to the approval of the Corporation and this Board of Directors of the form and
substance of such written instrument.
- 3 -
<PAGE> 7
Attachment 2 to
Exhibit 24(b)
Resolution adopted by the Board of Directors of KeyCorp on May 19, 1994.
WHEREAS, the Corporation's Registration Statement No. 33-51652,
authorized by resolutions adopted by the Executive Committee of the Board of
Directors of the Corporation on January 17, 1991, July 17, 1992, and December
17, 1992, and filed on September 3, 1992 with the Securities and Exchange
Commission (the "Commission") for the shelf registration of its debt securities
has $200,000,000 of unissued subordinated debt remaining unsold and
$189,400,000 of unissued medium-term notes remaining unsold, and
WHEREAS, the Corporation's registration Statement No. 33-39734,
authorized by a resolution adopted by the Executive Committee of the Board of
Directors of the Corporation on January 17, 1991 and filed May 17, 1991 with
the Commission for the shelf registration of its preferred stock has
$200,000,000 of unissued equity securities remaining unsold, and
WHEREAS, the Board of Directors of the Corporation adopted a
resolution on March 17, 1994, which, in part, authorized the consolidation of
the above-referenced shelf registrations and an increase in the amount of its
securities registered by $160,600,000 so that the total authorized principal
amount of securities available for issuance under the shelf registration is
$750,000,000, and authorized the issuance of all such securities under a
universal shelf registration in one or more public or private offerings, and
WHEREAS, all capitalized terms used in these Resolutions without
definition shall have the respective meanings assigned thereto in the
resolution of the Board of Directors adopted on March 17, 1994, and
WHEREAS, the Board of Directors deems it advisable to authorize and
approve certain actions to be taken in connection with the issuance and sale of
the Securities.
RESOLVED, that the issuance of Securities shall be authorized by the
Executive Committee of the Board of Directors; provided, that each of the Chief
Financial Officer, the Treasurer, and the Senior Vice President with
responsibility for corporate treasury functions of the Corporation (each, a
"Designated Officer") are hereby authorized, in the name and on behalf of the
Corporation, subject to the limitations set forth in these resolutions, to
exercise all of the authority of the Board of Directors in connection with the
authorization, issuance, and sale of Debt Securities which are not convertible
into Capital Securities of the Corporation, and Debt Warrants. Within the
limitations specified in these resolutions, the Executive Committee, or, in the
case of an issuance of Debt Securities which are not convertible into Capital
Securities of the Corporation, and Debt Warrants, each of the Designated
Officers, is hereby authorized and empowered to approve, for and on behalf of
the Corporation:
<PAGE> 8
(a) FOR EACH ISSUANCE OF SECURITIES: (1) the underwriter(s) or dealer(s),
if any, to which such Securities are to be sold, or the agent(s), if any,
for sales by the Corporation of such Securities; (2) the price to be paid
by underwriters or dealers, or the offering prices to other purchasers and
any discount to be received by or commission paid to, any underwriters,
dealers, or sales agents; (3) the Currency in which the Securities are to
be denominated; (4) the date on which the Securities shall be issued and
sold; (5) any trustees, security registrars, authenticating or paying
agents, exchange agents, or transfer agents; and (6) all other terms and
conditions of the Securities, including without limitation:
(b) FOR EACH ISSUANCE OF DEBT SECURITIES: (1) the form(s) of such Debt
Securities; (2) the title of such Debt Securities and whether such Debt
Securities are senior or subordinated; (3) the terms of subordination of
the Subordinated Debt Securities; (4) any limit upon the aggregate
principal amount of such Debt Securities that may be authenticated and
delivered under the applicable indenture; (5) the date or dates, or the
method by which such date or dates will be determined or extended, on which
the principal of such Debt Securities shall be payable; (6) the rate or
rates at which such Debt Securities 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, if any, shall accrue or the method by which such
date or dates shall be determined, the date or dates on which such
interest, if any, will be payable and the record date or dates, if any, for
the interest payable on any registered Debt Security on any interest
payment date, or the method by which such date shall be determined, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months; (7) the maturity date of the Debt
Securities; (8) the period or periods within which, the price or prices at
which, the Currency or Currencies in which, and other terms and conditions
upon which, such Debt Securities may be redeemed, in whole or in part, at
the option of the Corporation, and whether the Corporation is to have the
option; and (9) all other terms and conditions of the Debt Securities;
(c) FOR EACH ISSUANCE OF PREFERRED STOCK: (1) the designation of each
series, which may be by distinguishing number, letter, or title; (2) the
authorized number of shares of each series; (3) the dividend rate or rates
of the shares of each series; (4) the dates on which dividends, if
declared, shall be payable, and in the case of series on which dividends
are cumulative, the dates from which dividends shall be cumulative; (5) the
redemption rights and price or prices, if any, for shares of each
<PAGE> 9
series; (6) the amount, terms, conditions, and manner of operation of any
retirement or sinking fund to be provided for the purchase or redemption of
shares of each series; (7) the amounts payable on shares of each series in
the event of any voluntary or involuntary liquidation, dissolution, or
winding up of the affairs of the Corporation; (8) the authorization of
depositary shares and the issuance of depositary receipts, including the
determination of the fractional interest in a share of Preferred Stock
represented by each depositary receipt, as well as the terms and conditions
of any related agreement, the selection of a depositary, and the fees and
expenses of such depositary; (9) the restrictions, if any, upon the
issuance of any additonal shares of the same series or of any other class
or series; (10) the appointment of a registrar and transfer agent for the
registration, transfer, and exchange of the Preferred Stock and the
appointment of a dividend disbursing and withholding agent for the
Preferred Stock; and (11) all other terms and conditions of the Preferred
Stock; and
(d) FOR EACH ISSUANCE OF WARRANTS: (1) the designation, aggregate
amounts, price, and terms of the Warrants and the Warrant Exercise Items
which may be purchased or sold upon exercise of such Warrants; (2) the
designation and terms of any related Securities with which such Warrants
may be issued and the number of such Warrants issued with each such
Security; (3) the designation, number, purchase price, and terms of the
Warrant Exercise Items purchasable upon exercise of the Warrants; (4) the
date, if any, on and after which such Warrants and the related Securities
will be separately transferable; (5) the principal or other amount of
Warrant Exercise Items which may be purchased or sold upon exercise of each
Warrant and the price at which such principal or other amount of Warrant
Exercise Items may be purchased or sold upon such exercise; (6) the date on
which the right to exercise such Warrants shall commence and the date on
which such right shall expire; and (7) all other terms and conditions
of the Warrants;
and each Designated Officer and the Executive Committee is hereby authorized,
in the name and on behalf of the Corporation, to take any and all such action
to do, or authorize to be done, all such things as the Corporation may deem
necessary and appropriate to effectuate the purposes of these resolutions.
FURTHER RESOLVED, that in connection with the proposed sale of the
Debt Securities, the Chief Financial Officer, Treasurer, General Counsel and
Secretary, and Senior Vice President with responsibility for corporate treasury
functions of the Corporation or any other officer of the Corporation designated
by any one of them are hereby authorized, for and on behalf of the Corporation,
to execute and deliver one or more trust indentures or fiscal
<PAGE> 10
0exagency agreements, including any amendment or supplements thereto with such
trustees or fiscal agents as shall be selected by the officers signing such
Indenture, in such form and with such provisions as the officers executing such
document shall approve.
FURTHER RESOLVED, that in connection with any proposed sale of
Preferred Stock, the Chief Financial Officer, Treasurer, General Counsel and
Secretary, and Senior Vice President with responsibility for corporate treasury
functions of the Corporation or any other officer of the Corporation designated
by any one of them and any Assistant Secretary of the Corporation be, and they
hereby are, authorized to execute and cause to be filed with the Secretary of
State of the State of Ohio a Certificate of Amendment of the Amended and
Restated Articles of Incorporation of the Corporation relating to each series
of the Preferred Stock, with a par value of $1 each, of the Corporation, setting
forth the initial number of shares and the designation, relative rights,
preferences and limitations, to the extent not set forth in Part B of Article
IV of the Amended and Restated Articles of Incorporation, of each series of
Preferred Stock, as provided in these resolutions and in the Certificate of
Amendment as so filed.
FURTHER RESOLVED, that the Chief Financial Officer, Treasurer,
General Counsel and Secretary, and Senior Vice President with responsibility
for corporate treasury functions of the Corporation or any other officer of the
Corporation designated by any one of them are hereby authorized, for and on
behalf of the Corporation to execute and deliver forms of certificates
evidencing the Debt Securities, Preferred Stock, Depositary Shares, Common
Shares, or Warrants which signatures may be facsimiles (if any officer whose
manual or facsimile signature appears on any of such certificates ceases to be
such officer prior to the issuance of such certificate, such certificates shall
nevertheless be valid).
FURTHER RESOLVED that, in connection with the registration with the
Commission and the public offering and sale of the Securities by such
underwriters as are selected by the officers of the Corporation (the
"Underwriters"), the form of underwriting agreement, as approved by the
officers of the Corporation, setting forth the terms of the public offering and
sale, the Corporation's representations, warranties, and agreements with
respect to the filing with the Commission of the Registration Statement, the
compliance thereof with the provisions of the 1933 Act, and the accuracy of the
statements and other information contained therein, and containing the
agreement of the Corporation to indemnify the Underwriters and such persons, if
any, as may control any of the Underwriters against certain losses or
liabilities which may arise out of actual or alleged misstatements of material
facts or actual or alleged omissions to state material facts in the
Registration Statement, (the "Underwriting Agreement"), is hereby approved and
authorized subject to approval by the Executive Committee of the terms of each
issuance of securities as set forth above; that the Chief Financial Officer,
Treasurer, General Counsel and Secretary, and Senior Vice President with
responsibility for corporate
<PAGE> 11
treasury functions of the Corporation or any other officer of the Corporation
designated by any one of them or any of them is hereby authorized, for and on
behalf of the Corporation, to negotiate, execute, deliver, and perform the
Underwriting Agreement.
FURTHER RESOLVED, that the officers of the Corporation are authorized
to execute one or more warrant agreements relating to Warrants in such form as
the officers of the Corporation shall approve.
FURTHER RESOLVED, that the officers of the Corporation are authorized
to negotiate and establish a form of depositary agreement for shares of
Preferred Stock of which Depositary Shares shall be sold, and the officers of
the Corporation are authorized to execute one or more depositary agreements
substantially in such form, with such changes or amendments thereto as the
officer executing the same may deem necessary or advisable.
FURTHER RESOLVED, that each of the Chief Financial Officer,
Treasurer, General Counsel and Secretary, and Senior Vice President with
responsibility for corporate treasury functions of the Corporation or any other
officer of the Corporation designated by any one of them is authorized, if they
deem it advisable, to apply for listing on the New York Stock Exchange of all
or part of the Securities; to execute and file in the name and on behalf of the
Corporation any (a) applications on Form 8-A or on any amendment to any Form
8-A theretofore filed for the registration of all or part of the Securities
under the Securities Exchange Act of 1934, as amended, in connection with the
listing of such securities on a national securities exchange; (b) other
documents or agreements which may be necessary or desirable (in the option of
the executing officer as evidenced by such execution) to effect such listing;
and to appear or authorize representatives to appear on behalf of the
Corporation if required, before the committee on listing of such exchange.
FURTHER RESOLVED, that the Executive Committee is authorized to
reserve for issuance out of the Corporation's authorized but unissued Common
Shares and Preferred Stock such number of shares as shall be issuable upon
conversion of all Debt Securities in accordance with ther terms of the
applicable indenture; to reserve for issuance out of the Corporation's
authorized but unissued Common Shares such number of shares as shall be
issuable upon conversion of all Preferred Stock in accordance with the
applicable Supplemental Prospectus; and to issue such reserved Common Shares or
shares of Preferred Stock.
FURTHER RESOLVED that, any form of additional resolution or
resolutions required by law or regulation in connection with the foregoing
resolutions, be and hereby are adopted, and that the Secretary or any Assistant
Secretary of the Corporation be and each of them is hereby authorized to
certify as having been adopted by the Board of Directors of the Corporation any
such form of
<PAGE> 12
resolution, and a copy of each form of resolution so certified shall be
attached to the minutes of this meeting.
FURTHER RESOLVED, that the officers of the Corporation are hereby
authorized to enter into such agreements with a third party or parties as are
necessary to provide interest rate protection to the Corporation relating to
the issuance of the Securities (or a portion thereof) for such period or
periods and pursuant to such other terms and conditions as the Chief Financial
Officer or Treasurer determines necessary or advisable, including future,
hedging, or other transactions.
FURTHER RESOLVED, that the officers of the Corporation be and each of
them are hereby authorized to take any and all action as may be necessary or
advisable to carry out the intent and purposes of the foregoing resolutions,
and that the signature of any such officer to any document shall be conclusive,
as to the approval of the Corporation and this Board of Directors of the form
and substance of such written instrument.
<PAGE> 1
Exhibit 25
______________________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE
ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___________
______________________________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation (I.R.S. Employer
if not a U.S. national bank) Identification n.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
_________________________________
KEYCORP
(Exact name of obligor as specified in the charter)
OHIO 34-6542451
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
127 PUBLIC SQUARE
CLEVELAND, OHIO 44114
(Address of principal executive offices) (Zip Code)
______________________________
DEBT SECURITIES
(Title of the indenture securities)
______________________________________________________________________________
<PAGE> 2
-2-
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
NAME ADDRESS
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
ITEM 3.-15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990 and Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated March 28, 1994 - Incorporated herein
by reference to Exhibit 1 filed with Form 1
Statement, Registration No. 33-79862.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with
Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, dated as
amended on September 21, 1993. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1 Statement,
Registration No. 33-52359.
<PAGE> 3
-3-
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to
Exhibit 4 filed with Form T-1 Statement, Registration No.
22-18864.
EXHIBIT 7 - A copy of the latest report of condition of Bankers
Trust Company dated as of December 31, 1994 - (Copy
attached).
EXHIBIT 8 - Not Applicable
EXHIBIT 9 - Not Applicable
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trustee Indenture Act of 1939 the
trustee, Bankers Trust Company, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York, and State of New York, on the 29th day of March, 1995.
BANKERS TRUST COMPANY
By: /s/ Mark Woodward
----------------------------
Mark Woodward
Assistant Vice President
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trustee Indenture Act of 1939 the
trustee, Bankers Trust Company, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York, and State of New York, on the 29th day of March, 1995.
BANKERS TRUST COMPANY
By: /s/ Mark Woodward
----------------------------
Mark Woodward
Assistant Vice President
<PAGE> 6
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/94
Address: 130 Liberty Street ST-BK: 36-4840
City, State Zip: New York, NY 10006 FFIEC
FDIC Certificate No.: |0|0|6|2|3| Page RC-1
- -----------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
---------
C400
---------------------
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------ ---------------------
RCFD
<S> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1).................................. 0081 2,023,000 1.a.
b. Interest-bearing balances(2)........................................................... 0071 3,680,000 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A).............................. 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............................ 1773 3,934,000 2.b
3. Federal funds sold and securities purchased under agreements to resell in domestic offices
of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds sold..................................................................... 0276 5,382,000 3.a.
b. Securities purchased under agreements to resell........................................ 0277 133,000 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 17,269,000 ///////////////////// 4.a.
b. LESS: Allowance for loan and lease losses................... RCFD 3123 1,178,000 ///////////////////// 4.b.
c. LESS: Allocated transfer risk reserve....................... RCFD 3128 0 ///////////////////// 4.c.
------------------------- /////////////////////
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c).................................... 2125 16,091,000 4.d.
5. Assets held in trading accounts............................................................ 3545 34,364,000 5.
6. Premises and fixed assets (including capitalized leases)................................... 2145 872,000 6.
7. Other real estate owned (from Schedule RC-M)............................................... 2150 272,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)... 2130 209,000 8.
9. Customers' liability to this bank on acceptances outstanding............................... 2155 378,000 9.
10. Intangible assets (from Schedule RC-M)..................................................... 2143 9,000 10.
11. Other assets (from Schedule RC-F).......................................................... 2160 7,473,000 11.
12. Total assets (sum of items 1 through 11)................................................... 2170 74,820,000 12.
</TABLE>
- ------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 7
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/94
Address: 130 Liberty Street ST-BK: 36-4840
City, State Zip: New York, NY 10006 FFIEC
FDIC Certificate No.: 0 0 6 2 3 Page RC-2
- - - - -
SCHEDULE RC--CONTINUED
<TABLE>
<CAPTION>
----------------------
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------ ----------------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I)...... RCON 2200 8,291,000 13.a.
-----------------------
(1) Noninterest-bearing(1).................................... RCON 6631 3,454,000 ////////////////////// 13.a.(1)
(2) Interest-bearing.......................................... RCON 6636 4,837,000 ////////////////////// 13.a.(2)
-----------------------
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E,
part II)............................................................................... RCFN 2200 18,191,000 13.b.
-----------------------
(1) Noninterest-bearing....................................... RCFN 6631 555,000 ////////////////////// 13.b.(1)
(2) Interest-bearing.......................................... RCFN 6636 17,636,000 ////////////////////// 13.b.(2)
-----------------------
14. Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased................................................................ RCFD 0278 4,394,000 14.a.
b. Securities sold under agreements to repurchase......................................... RCFD 0279 384,000 14.b.
15. a. Demand notes issued to the U.S. Treasury............................................... RCON 2840 0 15.a
b. Trading liabilities.................................................................... RCFD 3548 20,461,000 15.b
16. Other borrowed money:
a. With original maturity of one year or less............................................. RCFD 2332 8,527,000 16.a
b. With original maturity of more than one year........................................... RCFD 2333 1,995,000 16.b
17. Mortgage indebtedness and obligations under capitalized leases............................. RCFD 2910 36,000 17.
18. Bank's liability on acceptances executed and outstanding................................... RCFD 2920 379,000 18.
19. Subordinated notes and debentures.......................................................... RCFD 3200 1,220,000 19.
20. Other liabilities (from Schedule RC-G)..................................................... RCFD 2930 6,792,000 20.
21. Total liabilities (sum of items 13 through 20)............................................. RCFD 2948 70,670,000 21.
22. Limited-life preferred stock and related surplus........................................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............................................. RCFD 3838 250,000 23.
24. Common stock............................................................................... RCFD 3230 852,000 24.
25. Surplus (exclude all surplus related to preferred stock)................................... RCFD 3839 498,000 25.
26. a. Undivided profits and capital reserves................................................. RCFD 3632 2,875,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securuties................. RCFD 8436 19,000 26.b.
27. Cumulative foreign currency translation adjustments........................................ RCFD 3284 (344,000) 27.
28. Total equity capital (sum of items 23 through 27).......................................... RCFD 3210 4,150,000 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22,
and 28).................................................................................... RCFD 3300 74,820,000 29.
----------------------
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that describes the most comprehensive
level of auditing work performed for the bank by Number
independent external auditors as of any date during ---------------
1993................................................... RCFD 6724 N/A M.1.
---------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
